Petition for Writ of Certiorari — Bowman Transportation, Inc. v. Franks

Supreme Court brief1974

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FUL

OCT 15

MICHAEL RoDaK,

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. .- 44-4294 {

BOWMAN TRANSPORTATION, INC.,

Petitioner,

VS.

HAROLD FRANKS, JOHNNIE LEE, and INTER-

NATIONAL UNION OF DISTRICT 50, ALLIED AND

TECHNICAL WORKERS OF THE UNITED STATES

AND CANADA, AND ITS LOCAL NO. 13600,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

WILLiAM M. Pate

MITCHELL, CLARKE, PATE & ANDERSON

Sixth Floor, Atlanta Federal Sav-

ings Building

Atlanta, Georgia 30303

Attorney for Petitioner

E. L. Menpewnatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3080

INDEX

Opinions Below ... 1

Jurisdiction 2

Statutes and Rule Involved 2

Questions Presented 2

Statement

Reasons for Granting the Writ

Conclusion 10

Appendix A—

Civil Rights Act of 1964, Title VII (before 1972

amendments )—

$703 (a), (c)(1) and (3), 42 U.S.C. §2000e-2(a),

§706(a), (e), (g), 42 U.S.C. §2000e-5(a), (e),

(g) A2

Civil Rights Act of 1964, Title VII (as amended by

Pub. L. 92-261, §4, March 24, 1972, 86 Stat. 104)—

$703(a), (c) (1) and (3), 42 U.S.C. §2000e-2(a),

§706(a), (b), (e), (g), 42 U.S.C. §2000e-5(a),

(b), (e), (g) A5

42 US.C. §1981 A8

Federal Rules of Civil Procedure, Rule 23 ................ A8

Appendix B—

Decision of Court of Appeals Al2

Judgment of Court of Appeals A60

Order of Court of Appeals denying petitioner’s peti-

tion for rehearing A62

Order of Court of Appeals denying petition of re-

spondents Franks and Lee for rehearing

Findings and Conclusions of District Court ................ A64

Order and Decree of District Court A84

Judgment of District Court A88

Citations

CASES

Eisen v. Carlisle & Jacquelin, ........ SRI sipeions , 40 L.Ed.2d

732 (May 28, 1974) 7

San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959) 9

STATUTES AND FEDERAL RULES OF CIVIL PROCEDURE

Civil Rights Act of 1964, Title II, §204(d), 42 U.S.C.

§2000a-3 (d) 8

Civil Rights Act of 1964, Title IV, 42 U.S.C. §2000c-6

Civil Rights Act of 1964, Title VI, 42 U.S.C. §2000d-1 8

Civil Rights Act of 1964, Title VII (before 1972 amend-

ments) —

§703(2), (c)(1) and (3), 42 U.S.C. §2000e-2(a),

§706(a), (e), (g), 42 U.S.C. §2000e-5(a), (e), (g) 2

Civil Rights Act of 1964, Title VII (as amended by Pub.

L. 92-261, §4, March 24, 1972, 86 Stat. 104)—

§703(a), (c)(1) and (3), 42 U.S.C. §2000e-2(a),

fo)

(c)(1) and (3) 2

$706(a), (b), (e), (g), 42 U.S.C. §2000e-5(a), (b),

(e), (g) 2

Civil Rights Act of 1964, Title X, 42 U.S.C. §2000g-1 .... 8-9

28 U.S.C. §1254(1) 2

42 US.C. $1981 2, 3, 5, 6, 8,9

Federal Rules of Civil Procedure, Rule 23 ........ 2, 3, 4, 5, 6, 7

MISCELLANEOUS

110 Congressional Record 2566 8

In the Supreme Court of the United States

OCTOBER TERM, 1974

No.

BOWMAN TRANSPORTATION, INC.,

Petitioner,

vs.

HAROLD FRANKS, JOHNNIE LEE, and INTER-

NATIONAL UNION OF DISTRICT 50, ALLIED AND

TECHNICAL WORKERS OF THE UNITED STATES

AND CANADA, AND ITS LOCAL NO. 13600,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Fifth Circuit in the above-entitled case on June 3,

1974.

OPINIONS BELOW

The opinion of the District Court for the Northern Dis-

trict of Georgia is unreported and appears in Apnendix B.

The opinion of the Court of Appeals is reported at 495

F.2d 398 and appears in Appendix B. The judgment of

the Court of Appeals dated June 3, 1974, its order dated

July 15, 1974, denying petitioner’s petition for rehearing,

and its order dated September 12, 1974, denying the peti-

tion of respondents Franks and Lee for rehearing, appear

in Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 3, 1974. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTES AND RULE INVOLVED

The federal statutes involved are the Civil Rights Act

of 1964, Title VII, §703(a), (c)(1) and (3) [42 U.S.C.

§2000e-2(a), (c) (1) and (3)], §706(a), (e), (g) [42 USC.

§2000e-5(a), (e), (g)], before 1972 amendments; §703(a),

§706(a), (b), (e), (g) [42 U.S.C. §2000e-5(a), (b), (e),

(g)], as amended by Pub. L. 92-261, §4, March 24, 1972,

86 Stat. 104; 42 U.S.C. $1981.

Also involved is Rule 23 of the Federal Rules of Civil

Procedure.

Pertinent statutory provisions and Rule 23 are set

forth in Appendix A.

QUESTIONS PRESENTED

1. Whether the District Court may award back pay

to unnamed members of a class consisting of black em-

ployees and applicants for employment, where the class

action alleging race discrimination in employment was

brought and allowed under Rule 23(b) (2) of the Federal

Rules of Civil Procedure, and notice under Rule 23(c) (7)

was not given to identifiable class members.

2. Whether in a class action alleging race discrimina-

tion in employment in violation of Title VII of tue Civil

Rights Act of 1964 and 42 United States Code §1981, the

District Court may award back pay to class members con-

sisting of employees and applicants, with respect to whom

a charge has not been filed under Title VII with the

Equal Employment Opportunity Commission. -

STATEMENT

This class action was brought under Rule 23(b) (2) by

a discharged black employee of petitioner trucking com-

pany’s Atlanta, Georgia, terminal. Alleging race discrimi-

nation in his discharge, and generally against a class of

black employees and applicants at the Atlanta terminal,

the plaintiff sought affirmative relief for himself and de-

claratory and injunctive relief for the class. The interven-

ing complainant, a discharged black road driver, also as-

serting a class claim under Rule 23(b) (2), likewise sought

affirmative relief for himself to remedy his discharge and

a prior failure of the company to grant his application for

employment, and sought declaratory and injunctive relief

for a class of black road drivers and applicants for road-

driving positions over the company’s entire system. The

complainants relied on Titie VII and 42 U.S. Code §1981.

At the trial the two complainants sought back pay for

unnamed members of the class of black employees and

applicants. There had been no arrangement for notice to

these persons concerning the pendency of the class action,

or concerning their rights to intervene and assert their

claims or to exclude themselves frem the action, and no

such arrangemeut for notice was sought by the two class

representatives. The members of the class had not been

named or otherwise described in a charge filed with the

Equal Employment Opportunity’ Commission. They did

not intervene in the proceedings below and ‘assert claims

for back pay.

. The result was that, although findings were made by

the District Court that the defendant company and defen-

dant unions committed acts of race discrimination against

_ the class, and declaratory and injunctive relief was granted,

the court found that the elements of back-pay claims for

the class members were not proved. The court determined

that this remedy was not warranted in a class action under

Rule 23(b) (2), and denied the remedy also in the exercise

of discretion. On this subject the court stated (App. B,

pp. A72-A73):

The plaintiffs also pray for lump sum awards for

back pay to any member of an affected cless plus

retroactive seniority to any rejected applicant. * * *

Suffice it to say here, the court concludes that such

relief is not warranted in class actions, The claims

for back pay presuppose an opening, qualification and

performance for every member of the class. The

claims for retroactive seniority also presuppose a

vacancy, qualification, and’ performance by every

member. There is no evidence on which to base these

multiple conclusions. More importantly, they bypass

the statutory administrative prerequisites to personal

suit established by the Congress and any appropriate

statute of limitations. In essence, they seek to give

individual compensation to the class in gross under

circumstances where an individual could not qualify

alone. The emphasis on private settlement in the Act

is also thwarted by this device. * * * For these rea-

sons as well as in the exercise of discretion, these

‘

remedies are rejected. Of course, where appropriate

they will be afforded the individual claimants here

under 42 U.S.C. $2000e-5(g).

The Court of Appeals reversed the denial of back pay

to unnamed class members, holding that the remedy was

proper in a Rule 23(b) (2) class action based on race dis-

crimination, and that prior submission of the claims of

class members to the EEOC was not a precondition to this

remedy. Deeming that the District Court had exercised

its discretion under an erroneous view of the applicable

law, the Court of Appeals remanded for reconsideration

of the class back-pay issue.

The number of potential back-pay claimants in the af-

fected class is suggested by the 197 unsuccessful applicants

for road-driving positions named in the record as black, the

17 black employees in the tire department, and 18 black

employees in the department of Atlanta city drivers and

dock workers, at the time of trial.’

REASONS FOR GRANTING THE WRIT

This case presents questions of great public impor-

tance in the administration and enforcement of Title VII

of the Civil Rights Act of 1964 and 42 U.S. Code §1981.

The holding of the Court of Appeals means that a single

complainant, through the device of a class action under

Rule 23(b) (2) expressly seeking injunctive and declara-

tory relief for the class, can assert and litigate a large num-

ber of individual money claims of class members who have

not been given notice of the action and have not sought to

1. These figures are taken from defendant company’s an-

swers to plaintiffs’ interrogatories, wnich were received in evi-

dence by the District Court upon plaintiffs’ motion.

intervene. The holding, if valid, thus arms an individual

plaintiff with the power to assert and obtain an adjudica-

tion of numerous claims of other persons who are uninter-

ested or even unwilling to participate in the case. This ap-

plication of Rule 23 is diametrically opposed to the in-

tended purpose of the rule. As applied below, the rule

permits a large expansion of the scope of litigation through

the adjudication of claims of persons not seeking to litigate.

The pattern of Rule 23 shows that it is designed to reduce

the scope of litigation by permitting the wholesale determi-

nation of claims which otherwise might have to be tried

and determined individually. Where multiple individual

claims are to be entertained, the rule itself contemplates

that the action will be brought under Rule 23(b) (3) and

notice under Rule 23(c) (2) must be given to members of

the class. The ruling of the Court of Appeals permits two

individual complainants, proceeding under Rule 23(b) (2),

without resort to the procedures contemplated by Rule

23(b) (3) and (c)(2), to assert the individual claims of

numerous class members.

This holding brings into play important questions of

law and policy which should be decided by this Court. If

Rule 23 is permitted to be thus used to expand the scope

of litigation rather than to simplify it, the result will be an

increasing burden upon the courts and the likely impair-

ment or elimination of the class action as a useful device.

Also, if an individual is permitted to proceed on such a

wide front in asserting the claims of unconsenting persons,

with the attendant increase of the scope of litigation arising

under Title VII and 42 U.S. Code §1981, the almost certain

result will be the impairment of the effective administra-

tion and enforcement of those statutes.

The decision of the Court of Appeals, in reversing the

District Court’s denial of back pay to unnamed class mem-

—

bers and holding that this remedy is available in a Rule

23(b) (2) class action, is inconsistent with the recent deci-

sion of this Court in Eisen v. Carlisle & Jacquelin, ........ US.

had , 40 L.Ed.2d 732 (May 28, 1974), holding that the re-

quirement under Rule 23(c)(2) of individual notice to

identifiable class members is not a discretionary consider-

ation to be waived in a particular case, but is an unambigu-

ous requirement of the rule. Although this Court was

dealing with different facts in Eisen, the class action having

been permitted under Rule 23(b) (3) and the decision re-

lating directly to the necessity of the 23(c) (2) notice in

such an action, the controlling considerations are applica-

ble to this case. The result of Eisen cannot be obviated

merely by use of a Rule 23(b) (2) label. The substance of

the applicable principle is that where individual money

claims qualify for class treatment, the action must be

brought under Rule 23(b) (3) rather than 23(b)(2) and

notice pursuant to 23(c)(2) must be given to class

members.

The nature of the class claims in Eisen did not differ

materially from the potential back-pay claims of present

class members. In both instances there are individual

claims for money, each involving separate elements of

proof. It is equally important in either case that an indi-

vidual claimant have the option provided under Rule 23

to refrain from participation in the class action and thus

to elect not to be bound by the decision. The notice pro-

cedure is not less important, or less mandatory, because the

class members have back-pay claims rather than claims for

damages unrelated to employment.

The second question presented by this petition is also

of great importance in the administration and enforcement

of Title VII and in the coordination of 42 U.S. Code §1981

with the procedural requirements of Tit!e VII.

The holding of the Court of Appeals permits the Dis-

trict Court to entertain back-pay claims on behalf of em-

ployees who have not utilized the EEOC’s administrative

processes and on whose behalf no charge has been filed

with the EEOC. This decision, if permitted to stand, de-

feats the Congressional purpose under Title VII of favoring

conciliation over court enforcement. This purpose is sup-

ported by legislative history and is made clear by the pat-

tern of the statute.

A provision of the House bill which would have al-

lowed a civil action to be brought in advance of conciliation

was deleted “to make certain that there will be a resort by

the Commission to conciliatory efforts before it resorts to

a court for enforcement.” 110 Congressional Record 2566

(remarks by Representative Celler). In addition to the

provisions concerning conciliation in Title VII, similar re-

quirements appear in other parts of the Civil Rights Act

of 1964. Title II, dealing with discrimination in public ac-

commodations, states that after a civil action has been

brought the court may refer the matter to the Community

Relations Service as long as the court believes there is a

reasonable possibility of obtaining voluntary compliance.

42 U.S.C. §2000a-3(d). Title IV concerning the desegrega-

tion of public education precludes the attorney general

from filing suit until the school board has had a reasonable

time to correct any discriminatory practice. 42 U.S.C.

§2000c-6. Title VI, affecting discrimination in federally

assisted programs, prohibits discontinuation of federal

funding until it is determined that discriminatory practices

cannot be terminated by voluntary means. 42 U.S.C.

§2000d-1. Title X establishes a Community Relations Ser-

—h

vice to assist in resolving disputes by conference and con-

ciliation. 42 U.S.C. §2000g-1.

The District Court correctly noted that the allowance

of back pay to employees whose claims had not been sub-

mitted to the EEOC would bypass the statutory adminis-

trative prerequisites to personal suit, appropriate statutes

of limitations, and the emphasis on private settlement. The

principle adopted by the Court of Appeals, if valid, means

that the Congressional purpose of promoting adjustment of

employment discrimination cases through the conciliation

procedures of the Commission will be effectively nullified,

and there will be no incentive for individual employees to

utilize these procedures so long as another member of the

class has done so.

If these individual claims must be submitted to the

EEOC before their assertion in court under Title VII, as

petitioner contends, the same requirement attaches as a

precondition to the maintenance of an action for rice dis-

crimination under 42 U.S.C. §1981. The principle estab-

lished by this Court in San Diego Building Trades Council

v. Garmon, 359 U.S. 236 (1959), and related cases, requires

this result. Just as the administrative procedure under the

National Labor Relations Act is preemptive of other means

of enforcement, the statutory machinery required under

Title VII likewise preempts other means of remedying race

discrimination in employment. Obviously the statutory

purpose of Title VII to promote conciliation of race dis-

crimination claims under auspices of the EEOC would be

nullified if the complainant could go directly to court and

present the same claims under another statute.

CONCLUSION

For these reasons, it is respectfully submitted that this

petition for a writ of certiorari should be granted.

WittuaM M. Pate

Attorney for Petitioner

MITCHELL, CLARKE, Pate & ANDERSON

Sixth Floor, Atlanta Federal Savings

Building

Atlanta, Georgia 30303

404: 577-6010

APPENDIX

APPENDIX A

Civil Rights Act of 1964, Title VII

(before 1972 amendments)

Sec. 703. (a) It shall be an unlawful employment

practice for an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any in-

dividual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin;

or °

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to deprive

any individual of employment opportunities or other-

wise adversely affect his status as an employee, be-

cause of such individual’s race, color, religion, sex, or

national origin.

* * te

a labor organization—

(1) to exclude or to expel from its membership,

or otherwise to discriminate against, any individual

because of his race, color, religion, sex, or national

origin;

ab + *

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of this

section.

Sec. 706. (a) Whenever it is charged in writing un-

der oath by a person claiming to be aggrieved, or a written

charge has been filed by a member of the Commission

where he has reasonable cause to believe a violation of this

title has occurred (and such charge sets forth the facts

upon which it is based) that an employer, employment

agency, or labor organization has engaged in an unlawful

employment practice, the Commission shall furnish such

employer, employment agency, or labor organization (here-

inafter referred to as the “respondent”) with a copy of

such charge and shall make an investigation of such charge,

provided that such charge shall not be made public by the

Commission. If the Commission shall determine, after

such investigation, that there is reasonable cause to believe

that the charge is true, the Commission shall endeavor to

eliminate any such alleged unlawful employment practice

by informal methods of conference, conciliation, and per-

' suasion. Nothing said or done during and as a part of such

endeavors may be made public by the Commission without

the written consent of the parties, or used as evidence in

a subsequent proceeding. Any officer or employee of the

Commission, who shall make public in any manner what-

ever any information in violation of this subsection shall

be deemed guilty of a misdemeanor and upon conviction

thereof shall be fined not more than $1,000 or imprisoned

not more than one year.

* * *

(e) If within thirty days after a charge is filed with

the Commission or within thirty days after expiration of

any period of reference under subsection (c) (except that

in either case such period may be extended to not more

than sixty days upon a determination by the Commission

that further efforts to secure voluntary compliance are

warranted), the Commission has been unable to obtain

voluntary compliance with this title, the Commission shall

so notify the person aggrieved and a civil action may,

within thirty days thereafter, be brought against the re-

spondent named in the charge (1) by the person claiming

to be aggrieved, or (2) if such charge was filed by a mem-

ber of the Commission, by any person whom the charge

alleges was aggrieved by the alleged unlawful employment

practice. Upon application by the complainant and in such

circumstances as the court may deem just, the court may

appoint an attorney for such complainant and may autho-

rize the commencement of the action without the payment

of fees, costs, or security. Upon timely application, the

court may, in its discretion, permit the Attorney General

to intervene in such civil action if he certifies that the case

is of general public importance. Upon request, the court

may, in its discretion, stay further proceedings for not more

than sixty days pending the termination of State or local

proceedings described in subsection (b) or the efforts of

the Commission to obtain voluntary compliance.

(g) If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an un-

lawful employment practice charged in the complaint, the

court may enjoin the respondent from engaging in such un-

lawful employment practice, and order such affirmative ac-

tion as may be appropriate, which may include reinstate-

ment or hiring of employees, with or without back pay

(payable by the employer, employment agency, or labor

organization, as the case may be, responsible for the un-

lawful employment practice). Interim earnings or amounts

earnable with reasonable diligence by the person or per-

sons discriminated against shall operate to reduce the back

pay otherwise allowable. No order of the court shall re-

quire the admission or reinstatement of an individual as a

membe of a union or the hiring, reinstatement, or promo-

tion “f an individual as an employee, or the payment to

bi.a of any back pay, if such individual was refused ad-

mission, suspended, or expelled or was refused employ-

ment or advancement or was suspended or discharged for

any reason other than discrimination on account of race,

color, religion, sex or national origin or in violation of sec-

tion 704(a).

* s *

Civil Rights Act of 1964, Title VII (as amended by Pub. L.

92-261, §4, March 24, 1972, 86 Stat. 104)

§703 (a) It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any in-

dividual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

3 labor organization—

(1) to exclude or to expel from its membership,

or otherwise to discriminate against, any individual

because of his race, color, religion, sex, or national

origin;

(3) ‘10 cause or attempt to cause an employer to

discriminate against an individual in violation of this

section.

* * *

§706 (a) The Commission is empowered, as herein-

after provided, to prevent any person from engaging in

any unlawful employment practice as set forth in section

2000e-2 or 2000e-3 of this title.

(b) Whenever a charge is filed by or on behalf of

a person claiming to be aggrieved, or by a member of

the Corumission, alleging that an employer, employment

agency, labor organization, or joint labor-management com-

mittee controlling apprenticeship or other training or re-

training, including on-the-job training programs, has en-

gaged in an unlawful employment practice, the Commis-

sion shall serve a notice of the charge (including the date,

place and circumstances of the alleged unlawful employ-

ment practice) on such employer, employment agency,

labor organization, or joint labor-management committee

(hereinafter referred to as the “respondent”) within ten

days, and shall make an investigation thereof. Charges

shall be in writing under oath or affirmation and shall con-

tain such information and be in such form as the Commis-

sion requires. Charges shall not be made public by the

Commission. If the Commission determines after such in-

vestigation that there is not reasonable cause to believe

that the charge is true, it shall dismiss the charge and

promptly notify the person claiming to be aggrieved and

the respondent of its action. In determining whether rea-

sonable cause exists, the Commission shall accord substan-

tial weight to final findings and orders made by State or

local authorities in proceedings commenced under State or

local law pursuant to the requirements of subsections (c)

and (d) of this section. If the Commission determines

after such investigation that there is reasonable cause to

believe that the charge is true, the Commission shall en-

deavor to eliminate any such alleged unlawful employment

practice by informal methods of conference, conciliation,

and persuasion. Nothing said or done during and as a part

of such informal endeavors may be made public by the

Commission, its officers or employees, or used as evidence

in a subsequent proceeding without the written consent of

the persons concerned. Any person who makes public in-

formation in violation of this subsection shal] be fined not

more than $1,000 or imprisoned for not more than one year,

or both. The Commission shall make its determination on

reasonable cause as promptly as possible and, so far as

practicable, not later than one hundred and twenty days

from the filing of the charge or, where applicable under

subsection (c) or (d) of this section, from the date upon

which the Commission is authorized to take action with re-

spect to the charge.

* * *

(e) A charge under this section shall be filed within

one hundred and eighty days after the alleged unlawful

employment practice occurred and notice of the charge (in-

cluding the date, place and circumstances of the alleged

unlawful employment practice) shall be served upon the

person against whom such charge is made within ten days

thereafter, except that in a case of an unlawful employ-

ment practice with respect to which the person aggrieved

has initially instituted proceedings with a State or local

agency with authority to grant or seek relief from such

practice or to institute criminal proceedings with respect

thereto upon receiving notice thereof, such charge shall be

filed by or on behalf of the person aggrieved within three

hundred days after the alleged unlawful employment prac-

tice occurred, or within thirty days after receiving notice

that the State or local agency has terminated the proceed-

ings under the State or local law, whichever is earlier, and

a copy of such charge shall be filed Ly the Commission

with the State or local agency.

(g) If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an un-

lav;ful employment practice charged in the complaint, the

court 129y enjoin the respondent from engaging in such

unlawful em,cvment nractice, and order such affirmative

action as may be appropriate, which may include, but is

not limited to, reinstatement or hiring of employees, with

or without back pay (payable by the employer, employ-

ment agency, or labor organization, as the case may be,

responsible for the unlawful employment practice), or any

other equitable relief as the court deems appropriate. Back

pay liability shall not accrue from a date more than two

years prior to the filing of a charge with the Commission.

Interim earnings or amounts earnable with reasonable dili-

gence by the person or persons discriminated against shall

operate to reduce the back pay otherwise allowable. No

order of the court shall require the admission or reinstate-

ment of an individual as a member of a union, or the hiring,

reinstatement, or promotion of an, individual as an em-

ployee, or the payment to him of any back pay, if such

individual was refused admission, suspended, or expelled,

or was refused employment or advancement or was sus-

pended or discharged for any reason other than discrimina-

tion on account of race, color, religion, sex, or national

origin or in violation of section 2000e-3(a) of this title.

’. * *#

A&R

42 US. Code §1981 |

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taay,’ Boeneen, and exactions

COE and to no other.

Federal Rules of Civil Procedure

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numerous

that joinder of all members is impracticable, (2) there are

questions of law or fact common 'to the class, (3) the claims

' or defenses of the representative parties are typical of the

claims or defenses of the class, and (4) the representative

parties will fairly and adequately protect the interests of

the class.

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of subdivi-

sion (a) are satisfied, and in addition;

(1) the prosecution of separate actions by or

against individual members of the class would create

a risk of

(A) . inconsistent or varying sisiciailess with

respect to individual members of the class which

_ would establish incompatible standards of conduct

for the party opposing the class, or

(B) adjudications with respect to individual

members of the ciass which would as a practical

matter be dispositive of the interests of the other

members not parties to the adjudications or sub-

stantially impair or impede their avility to protect

their interests; or

| (2) the party opposing the class has acted or re-

fused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive re-

lief or corresponding declaratory relief with respect to

the class as a whole; or

(3) the court finds that the questions of law or

fact common to the members ui the class predominate

over any questions affecting only individual members,

and that a class action is superior to other available

methods for the fair and efficient adjudication of the

controversy. The matters pertinent to the findings in-

clude: (A) the interest of members of the class in

individually controlling the prosecution or defense of

separate actions; (B) the extent and nature of any

litigation concerning the controversy already com-

menced by or against members of the class; (C) the

desirability or undesirability of concentrating the liti-

gation of the claims in the particular forum; (D) the

difficulties likely to be encountered in the manage-

ment of a class action.

Be Maintained; Notice; Judgment; Actions Conducted Par-

tially As Class Actions.

(1) As soon as practicable after the commence-

ment of an action brought as a class action, the court

shall determine by order whether it is to be so main-

tained. An order under this subdivision may be con-

Al0

ditional, ard may be altered or amended before the

decision on the merits.

(2) In any class action maintained under sub-

division (b) (3), the court shall direct to the members

of the class the best notice practicable under the cir-

cumstances, including individual notice to all members

who can be identified through reasonable effort. The

notice shall advise each member that (A) the court

will exclude him from the class if he so requests by a

specified date; (B) the judgment, whether favorable

or not, will include all members who do not request

exclusion; and (C) any member who does not request

exclusion may, if he desires, enter an appearance

through his counsel.

(3) The judgment in an action maintained as a

class action under subdivision (b)(1) or (b)(2),

whether or not favorable to the class, shall include

and describe those whom the court finds to be mem-

bers of the class. The judgment in an action main-

tained as a class action under subdivision (b) (3),

whether or not favorable to the class, shall include

and specify or describe those to whom the notice pro-

vided in subdivision (c)(2) was directed, and who

have not requested exclusion, and whom the court

finds to be members of the class.

(4) When appropriate (A) an action may be

brought or maintained as a class action with respect

to particular issues, or (B) a class may be divided into

subclasses and each subclass treated as a class, and the

provisions of this rule shall then be construed and ap-

plied accordingly.

(d) Orders in Conduct of Actions. In the conduct

of actions to which this rule applies, the court may make

All

appropriate orders: (1) determining the course of pro-

ceedings or prescribing measures to prevent undue repeti-

tion or complication in the presentation of evidence or

argument; (2) requiring, for the protection of the members

of the class or otherwise for the fair conduct of the action,

that notice be given in such manner as the court may direct

to some or all of the members of any step in the action, or

of the proposed extent of the judgment, or of the opportu-

nity of members to signify whether they consider the rep-

resentation fair and adequate, to intervene and present

claims or defenses, or otherwise to come into the action;

(3) imposing conditions on the representative parties or

on intervenors; (4) requiring that the ovleadings be

amended to eliminate therefrom allegations as to repre-

sentation of absent persons, and that the action proceed

accordingly; (5) dealing with similar procedural matters.

The orders may be combined with an order under Rule 16,

and may be altered or amended as may be desirable from

time to time.

(e) Dismissal or Compromise. A class action shall

not be dismissed or compromised without the approval of

the court, and notice of the proposed dismissal or compro-

mise shall be given to all members of the class in such

manner as the court directs.

Al2

APPENDIX B

Harold FRANKS, Plaintiff-Appellant,

Johnny Lee, Intervenor-Appellant,

BOWMAN TRANSPORTATION COMPANY et al.,

Defendants-Appellees.

No. 72-3239.

United States Court of Appeals,

Fifth Circuit.

June 3, 1974.

A former employee of a trucking company brought an

action against his former employer on behalf of himself and

others similarly situated alleging discriminatory refusal to

promote, discriminatory discharge and other racial discrimina-

tion in employment. After another former employee of the

same employer had been permitted to intervene with similar

charges, the United States District Court for the Northern

District of Georgia, at Atlanta, Sidney O. Smith, Jr., J., found

that plaintiff’s suit had been barred by limitations and that

the intervening plaintiff had failed to prove his charge of

discriminatory discharge, but also found that the intervening

plaintiff had proved his claim for discriminatory refusal to

hire and that a pattern of past racial discrimination by the

employer against its black employees had been shown. On

appeal by both plaintiff and intervenor, the Court of Appeals,

Thornberry, Circuit Judge, held, inter alia, that the 30-day

period within which plaintiff was required to bring his suit

under the Civil Rights Act of 1964 began to run only when he

actually received his “suit letter” from the EEOC; that the

statutes of limitations applying to plaintiff’s action for back

wages and for denial of his civil rights under the Civil Rights

AI3

4307 FRANKS v. BOWMAN TRANSP. CO.

Act of 1866 were tolled both during the pendency of the.

EEOC complaint and thereafter until plaintiff actually re-—

ceived his “suit letter”; that evidence supported the trial

court’s determination that the intervenor had not proved that

his discharge was racially motivated; and that the class and

subclasses represented in the action were entitled to further

affirmative relief than was afforded by the district court’s

decree.

Affirmed in part, reversed in part, vacated in part, and

remanded.

1. Civil Rights <=40

When first “suit letter” from EEOC to employee was

delivered by certified mail, return receipt requested, to em-

ployee’s nine-year-old nephew, but thereafter lost by nephew

before being delivered to employee, and employee’s action

against employer under Civil Rights Act of 1964 was not

initiated until over one year later, but within 30 days after

employee received second “suit letter” from EEOC, action was

timely since mailing of initial letter did not constitute con-

structive receipt by employee and did not effectively “notify”

employee of right to bring suit within meaning of Act. 42

U.S.C.A. § 1981; Civil Rights Act of 1964, § 706(e) as amended

42 US.C.A. § 2000e—5(e); Equal Opportunity Act of 1972,

§ 14, 42 U.S.C.A. § 2000e—5 note.

See publication Words and Phrases for other

judicial constructions and definitions.

2. Civil Rights <=40

While, as evidentiary matter, district court may properly

consider mailing of “suit letter” and receipt showing proper

delivery as prima facie evidence that notice has reached

addressee, nevertheless where it is shown that claimant,

through no fault of his own, has failed to receive “suit letter,”

delivery of letter to mailing address cannot be considered to

constitute statutory notification. 42 U.S.C.A. § 1981; Civil

Rights Act of 1964, § 706(e) as amended 42 U.S.C.A.

Alé4

FRANKS v. BOWMAN TRANSP. CO. 4308

§ 2000e—5(e); Equal Opportunity Act of 1972, § 14, 42 US.

C.A. § 2000e—5 note.

3. Courts o=375(3)

When action is brought for back pay or similar damages

under federal statute which contains no built-in limitations

period, federal district court must apply statute of limitations

of state where it sits which would be applicable to most

closely analogous state action. 42 U.S.C.A. § 1981; Civil

Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A.

§ 2000e et seq.

4. Civil Rights <=40

Statutes of limitations pertaining to employees’ claims

under Civil Rights Acts of 1866 and 1964 for back wages due

because of alleged racially discriminatory employment prac-

tices were tolled by filing of complaint with EEOC and

remained tolled during such time as processes of agency

reconciliation were at work and until employee received copy

of second “suit letter,” first “suit letter” having been lost by

employee’s nephew before being delivered to him. 42 US.

C.A. § 1981; Civil Rights Act of 1964, §§ 701 et seq., 706(e),

707 as amended 42 U.S.C.A. §§ 2000e et seq., 2000e—5,

2000e-6(e); Code Ga. § 3-704.

5. Civil Rights <= 13.10, 40

Actions and relief authorized by Civil Rights Act of 1866

and Title VII of Civil Rights Act of 1964, including right to

award of back pay, are essentially equitable in nature and

therefore subject to applicability of doctrine of laches. 42

U.S.C.A. § 1981; Civil Rights Act of 1964, §§ 701 et seq.,

706(g) as amended 42 U.S.C.A. §§ 2000e et seq., 2000e—5(g).

6. Civil Rights <=40

When issue of tardy filing of complaint of employment

discrimination under Civil Rights Act of 1964 was brought

sufficiently to attention of trial court to be ground for its

ruling, issue of possible laches on part of complainant was

SO Sit CRS

Al5

4309 FRANKS v. BOWMAN TRANSP. CO.

adequately raised. Civii Rights Act of 1964, § 701 et seq. as

amended 42 U.S.C.A. § 2000e et seq.

7. Civil Rights ¢=44(1)

Although facts surrounding discovery of “stinger” in fuel

pump of truck driven by employee of trucking company left

ample room for suspicion that fuel pump had been altered by

another employee, evidence supported trial court’s finding

that employee’s dismissal by employer, ostensibly because

employee breached employer’s regulations by tampering with

fuel pump, was not racially motivated. 42 U.S.C.A. § 1981;

Civil Rights Act of 1964, § 706 as amended 42 U.S.C.A.

§ 2000e—5.

8. Civil Rights <=38

Federal court is final arbiter in cases involving Title VII

of Civil Rights Act of 1964, and arbitrator’s determination

under labor contract has no effect upon court’s power to

adjudicate violation of employment rights under that Act.

Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A.

§ 2000e et seq.

9. Civil Rights <=39

Labor Relations <=465

Invoking contractual grievance procedures does not con-

stitute election of remedies which automatically bars claimant

under employment discrimination provisions of Civil Rights

Act of 1964 from court, and arbitration award cannot be

pleaded as defense to such claim under doctrine of res judica-

ta. Civil Rights Act of 1964, § 701 et seq. as amended 42

U.S.C.A. § 2000e et seq.

10. Civil Rights 43

Arbitration awards and grievance determinations may be

properly considered as evidence in suit brought under federal

statutes prohibiting racial discrimination in employment to

extent they are relevant to questions before court, and court

has discretion under certain circumstances to defer to arbitra-

a SAL POOL MGI: POUL OM, Pr Te CN eR Res

Al6

FRANKS v. BOWMAN TRANSP. CO. 4310

tor’s determinations. Civil Rights Act of 1964, § 701 et seq. as

amended 42 U.S.C.A. § 2000e et seq.

11. Labor Relations <>465

In action under Title VII of Civil Rights Act of 1964 for

alleged racial employment discrimination, district court was

not bound by arbitrator’s decision that employee had been

discharged by employer because he tampered with fuel pump

rather thar for racial reasons, since contractual right not to be

dismissed unless cause could be demonstrated was not identi-

cal to right not to be discharged for reasons of race and

arbitrator’s finding could be of little, if any, evidentiary value

on issue whether firing was discriminatorily motivated. Civil

Rights Act of 1964, § 701 et seq. as amended 42 U/S.C.A.

§ 2000e et seq.

12. Civil Rights. <=46

Limits of district court’s discretion in framing remedies in

action under Title VII of Civil Rights Act of 1964 are marked

by its duty to carry out within practicable limits purpose of

Act, which is to make discriminatee whole and to remedy

effects of past discrimination. Civil Rights Act of 1964, § 701

et seq. as amended 42 U.S.C.A. § 2000e et seq.

13. Civil Rights <=9.12

When departmental seniority system perpetuates effect

of past discrimination, it is unlawful employment practice

proscribed and remediable under statutes prohibiting racial

employment discrimination. Civil Rights Act of 1964, § 701 et

seq. as amended 42 U.S.C.A. § 2000e et seq.

14. Civil Rights <=9.12 _

That departmental seniority system is racially neutral on

its face does not save it from constituting discrimination in

employment if its effect is to cut into employees’ present rignt

not to be discriminated against on ground of race. Civil

Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A.

§ 2000e et seq. ;

Al7

4311 FRANKS v. BOWMAN TRANS?P. Cv.

15. Civil Rights 46

Federal courts’ power to modify or suspend operation of

discriminatory seniority system is not affected by fact that

seniority system has been established in private collective

bargaining agreement. Civil Rights Act of 1964, § 701 et seq.

as amended 42 U.S.C.A. § 2000e et seq.

16. Civil Rights e=9.12

Only ground upon which discrimination-perpetuating se-

niority system may be defended is that of business necessity.

Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A.

§ 2000e et seq.

17. Civil Rights <=46

In view of manner in which trucking company’s racially

discriminatory departmental seniority system locked em-

ployees into old racial patterns, remedy afforded by district

court in action under Title VII of Civil Rights Act of 1964

should have allowed employees the use of full company senior-

ity for transfer purposes for reasonable time and for all

purposes after transfer in new department. Civil Rights Act

of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.

18. Civil Rights e=46

Even though black applicants for positions as over-the-

road truck drivers suffered wrong when they were rejected on

racial grounds, court had no power, in suit for discrimination

in employment, to grant applicants constructive company se-

niority as of date of applications as remedy for such wrongs.

Civil Rights Act of 1964, §§ 701 et seq., 703(h) as amended 42

U.S.C.A. §§ 2000e et seq., 2000e—2(h).

19. Civil Rights <=—46

In view of findings that employer, a trucking company,

although aware of its legal obligations not to discriminate on

basis of race, intentionally continued to follow its discrimina-

tory policy until threatened with litigation, and in view of

finding that employer had never hired any black office work-

ers, but had relied on word-of-mouth advertising to fill vacan-

Al8

FRANKS v. BOWMAN TRANSP. CO. 4312

cies which became available, employer’s black employees, as

class, were entitled to relief in form of requirement of public

recruitment aimed at potential black drivers and clerical em-

ployees. Civil Rights Act of 1964, § 701 et seq. as amended 42

U.S.C.A. § 2000e et seq.

20. Civil Rights <=46

Courts >406.9(10)

Where trucking company had unlawfully engaged in ra-

cial discrimination in employment by affording to white em-

ployees training opportunities which were not made available

to blacks, minimum effective remedy would be to allow black

applicants and new employees access to training opportunities

on equal basis with whites, and trial court would be instructed

on remand to inquire as to whether temporary measures to

insure access to training opportunities for discriminatees

would be appropriate. Civil Rights Act of 1964, § 701 et seq.

as amended 42 U.S.C.A. § 2000e et seq.

21. Civil Rights e=46

Where employer maintained blatantly discriminatory poli-

cies for over five years after passage of Civil Rights Act of

1964 and had since that time moved toward complying with

Act’s mandates only under pressure from government agen-

cies and in face of threatened litigation, district court should

retain jurisdiction in employment discrimination case against

employer for at least two years, and require periodic reports

from employer which would enable court to ascertain that

remedial measures mandated by it were being carried into

effect. Civil Rights Act of 1964, § 701 et seq. as amended 42

U.S.C.A. § 2000e et seq.

22. Civil Rights <=46

Neither letter nor spirit of Title VII of Civil Rights Act

of 1964 nor federal rule dealing with class actions prohibited

back pay awards to nonnamed class members in class action

brought under Act for racially discriminatory employment

practices. Fed.Rules Civ.Proc. rules 23, 23(b)(2), 28 U.S.C.A.;

Al9

4313 FRANKS v. BOWMAN TRANSP. CO.

42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 706(k) as

amended 42 U.S.C.A. § 2000e—5(k).

Appeal from the United States District Court for the North-

ern District of Georgia.

Before THORNBERRY, AINSWORTH and RONEY, Cir-

cuit Judges.

THORNBERRY, Circuit Judge:

After processing a complaint through the EEOC, appellant

Franks brought this racial-discrimination civil rights suit un-

der Title VII, § 706, of the Civil Rights Act of 1964, 42

U.S.C.A. § 2000e—5, and under 42 U.S.C.A. § 1981 on behalf of

himself and those similarly situated against his former em-

ployer, Bowman Transportation Company, and his union.’ He

alleged a discriminatory refusal to promote and a discrimina-

tory discharge, and he sought extensive declaratory and equi-

table relief for himself and for class members. Lee was

permitted to intervene as plaintiff to press his individual

claim against Bowman for a discriminatory refusal to hire and

for a discriminatory discharge and to represent other classes

of black Bowman employees and job applicants. The district

court found after a three-day trial that Franks had estab-

lished the factual bases for his individual claim, but it dis-

missed his individual action because it concluded Franks had

waited beyond the applicable limitations period to file suit.

The court held that Lee factually established his claim for a

discriminatory refusal to hire, but failed to prove his claim for

discriminatory discharge, and it accordingly entered judgment

partly for him and partly against him. As to the classes

represented, the court found that past racial discrimination

had deen demonstrated and that the departmental seniority

1. International Union of District 50, Local No. 13600, Allied and

Technical Workers of the United States and Canada. Also included

as a party defendant was the national union of which Local 13600 is

a part, International Union of Allied and Technical Workers of the

United States and Canada.

A20

FRANKS v. BOWMAN TRANSP. CO. 4314

system maintained by Bowman and the union perpetuated the

effects of past discrimination. As a remedy, the court en-

joined Bowman from discriminating along racial lines in the

future, ordered that certain class members be allowed to

utilize company seniority accumulated before the date on

which discrimination had ceased, and afforded certain discri-

minatees who responded to a notice from Bowman within

thirty days priority in consideration for employment. The

court declined to grent further affirmative relief requested,

including the use of full company seniority for certain discri-

riinatees, measures to ensure hiring and training of greater

numbers of blacks in the future, and a requirement that

Bowman file periodic reports with the district court to demon-

strate compliance.

On this appeal we are asked to review the district court’s

adverse rulings on the individual claims of Franks and Lee

and to determine whether the district court abused its discre-

tion in not affording greater affirmative relief to the classes

they represented. We shall discuss the pertinent facts in

connection with the various claims.

I. Franks’ Individual Claim: Limitations and Laches

Bowman is an interstate trucking company which operates

_ as a common carrier licensed by the Interstate Commerce

Commission throughout southeastern United States“and in

parts of the mid-west.’ Its principal terminals are in Atlanta,

Birmingham, Charlotte, and Richmond.

Franks, a Negro, was first hired at Bowman’s Atlanta

terminal in 1960 as a “tire man,”—a position which requires

the most menial work at the terminal and brings the lowest

pay. Except for a one-year period in 1961 and 1962 during

which he was assigned as a “grease man,” Franks worked as a

tire man continuously until 1965, when he resigned due to an

2. Bowman’s operations and procedures are described more fully at

the beginning of part III of this opinion, infra.

POT MNES NORTE LODE ON DI a DIENER A ps RO 8 SU

A21

4315 FRANKS v. BOWMAN TRANSP. CO.

injury. In 1966 he was rehired as a tire man. After his

return Franks attempted on several occasions to obtain a

transfer, or promotion, into another job, but his way was

blocked by Bowman’s racially discriminatory policy of employ-

ing blacks only in the Tire Shop.’ Although Bowman agreed

in a collective bargaining agreement signed in 1967 to allow

transfers and to hire without regard to race, the discriminato-

ry policy was in fact continued in effect unofficially after

1967. Both before and after 1967 Franks was told that blacks

could not transfer, or be promoted, from the Tire Shop. The

district court found that but for Bowman’s discriminatory

policy, Franks should reasonably have been promoted to a

higher paying, “dock worker” position by the end of 1967. No

challenge is made to this finding.

Having watched white workers hired “off the street” into

higher paying positions for which he was qualified and had

applied, Franks filed a complaint with the Equal Employment

Opportunity Commission on March 25, 1968, charging that

Bowman refused to promote him because of its racially dis-

criminatory policy of employing blacks only in the Tire Shop.

EEOC officials visited the Atlanta terminal on two occasions,

on April 23, 1968 and on May 10, 1968 to investigate Franks’

charges. A few hours after the second visit Bowman dis-

charged Franks, assertedly for “unauthorized bobtailing,” or

using company vehicles for personal errands. The district

court rejected this purported explanation, however, and found

that Franks was discharged “for reasons of race.” On May

13, 1968. Franks filed a second complaint with the EEOC,

alleging a discriminatory discharge. |

Efforts to resolve the dispute through conciliation. having

failed, on March 21, 1969 Franks’ then attorney requested the

EEOC to issue a § 706(e) “suit letter” covering both com-

plaints, and such a letter was sent on the same day to Franks’

mailing address by certified mail, return receipt requested.

3. Two blacks who worked as “cleanup men” in the Trailer Shop

were exceptions.

A22

FRANKS v. BOWMAN TRANSP. CO. 4316

Franks resided at 5339 Victory Drive in Morrow, Georgia, but

he received his mail at 5319 Victory Drive, where his grand-

mother, sister, and nine-year-old nephew resided. On March

22 his nephew received the letter and signed’ the postal

receipt, but he lost the letter before delivering it to Franks.

Franks learned that his nephew had signed for some letter,

but’ he never saw or received the letter personally. About a

year later, on March 20, 1970 Franks contacted EEOC officials

again about his dispute with Bowman, and, upon being shown

the postal receipt for the first suit letter, affirmed in an

affidavit that he had not personally received it. Franks then

retained his present attorneys and filed “amended” charges

with the EEOC which substantially duplicated the earlier

charges. A second suit letter issued on April 14, 1971, and

' Franks filed a suit less than a month later on May 5, 1971.

On these facts the district court held Franks’ Title VII and

his Section 1981 claim barred. As to the Title VII action, the

court reasoned that the thirty-day statutory limitations

period ‘ began to run on March 22, 1969, the date the first suit

letter wus delivered to Franks’ mailing address, so that the

action was barred after April 21, 1969. As to the § 1981

action, the court concluded that a two-year Georgia statute of

limitations was applicable and that it barred the claim since

the suit had not been filed for almost three years after

Franks’ discharge on May 10, 1968.

{1] The statutory language which established the thirty-

day limitations period applicable to Franks’ Title VII action is

found in § 706(e) as it read before the 1972 amendments: °

If within thirty days after a charge is filed with the

Commission [or within sixty days, if the Commissi.n acts to

‘extend the period] the Commission has been unable to

obtain voluntary compliance with this subchapter, the Com-

4. The 1972 amendments to the Civil Rights Act of 1964, P.L. 92-261

§ 14, 86 Stat. 113, extended the limitations period from thirty days

to ninety days. —

_ §&. See note 4 supra.

A23

4317 FRANKS v. BOWMAN TRANSP. CO.

mission shall so notify the person aggrieved and a civil

action may, within thirty days thereafter be brought

against the respondent named in the — (1) by the

person claiming to be aggrieved.

The key word in the statute is “notify”; the limitations period

begins to run upon notification of the aggrieved party.’ This

Court has held that such notification takes place only when

“notice of the failure to obtain voluntary compliance has been

sent and received.” Miller v. International Paper Co., 5th Cir.

1969, 408 F.2d 283 (emphasis added). There being no question

that the EEOC mailed the statutory notice t Franks, the

Title VII limitations issue must be framed in terms of wheth-

er Franks constructively “received” the letter, even though it

never actually came into his hands. We hold that Franks did

not “receive” the first suit letter, and that the thirty-day

limitations period began to run only when the second suit

letter actually reached him or his attorney. Genovese v. Shell

Oil Co., 5th Cir. 1973, 488 F.2d 84. Since suit was filed within

thirty days of the receipt of the second svit letter, the Title

VII action was not barred by the § 706(e) limitations period.

We do not deal here with service of process or receipt of an

offer or acceptance to make a contract, but with the interpre-

tation of Title VII. The courts have consistently construed

the Act liberally to effectuate its remedial purpose, and we

think this purpose would be poorly served by the application

of a “constructive receipt” doctrine to the notification proce-

dure. More narrowly, the purpose of the statutory notifica-

tion, which is “to provide a formal notification to the claimant

that his administrative remedies with the Commission l.ave

6. The statute does not establish an aggregate ninety-day limitations

period (i. e., the aggregate of the maximum sixty-day conciliation

period and the thirty-day right-to-sue period) which begins to run on

the date the charge is filed. Miller v. International Paper Co., 5th

Cir. 1969, 408 F.2d 283. The statute does not specify any certain

limit on the time which may pass between the expiration of the

conciliation period and the statutory notification, which starts the

thirty-day period. See id.; see also 29 C.F.R. § 1601.25a.

A24

FRANKS v. BOWMAN TRANSP. CO. 4318

been exhausted,” Beverly v. Lone Star Lead Construction

Corp., 5th Cir. 1971, 437 F.2d 1136, and to inform him that the

thirty-day period has begun to run, has not been accomplished

unless the claimant is actually aware of the suit letter. In

terms of the policy behind limitations periods generally, the

claimant can hardly be said to have slept on his rights if he

allows the thirty-day period to expire in ignorance of his right

to sue.

Our holding that the statutory notification is complete only

upon actual receipt of the suit letter accords with the view we

have expressed in prior cases that Congress did not intend to

condition a claimant’s right to sue under Title VII on fortui-

tous circumstances or events beyond his control which are not

spelled out in the statute. Thus, in Beverly v. Lone Star Lead

Construction Corp., supra, we concluded that the EEOC’s

failure to find reasonable cause to suspect a Title VII viola-

tion was not a jurisdictional barrier to a claimant’s Title VII

suit because Congress did not intend to make a claimant’s

statutory right to sue subject to “such fortuitous variables as

workload, mistakes, or possible lack of diligence of EEOC

personnel.” Id. at 1140. Similarly, in Dent v. St. Louis-San

Francisco Railway Co., 5th Cir. 1969, 406 F.2d 399, we held

that the EEOC’s failure to attempt to effect voluntary concili-

ation did not bar a Title VII suit because a claimant’s right to

sue was not dependent on acts or omissions of the EEOC

which were “beyond the control of the aggrieved party.” Id.

at 403. In this case we are not confronted with any delay or

mistake on the part of the EEOC, but with the loss of the first

suit letter by Franks’ nine-year-old nephew. This loss must

be characterized as a fortuitous event, however, just as loss of

the letter in the EEOC office before mailing or loss by the

postal department would have been.

{2] As an evidentiary matter, a district court might prop-

erly vonsider the mailing of a suit letter and the receipt

showing proper delivery as prima facie evidence that the

notice had reached the addressee. Where, however, it is

EPRI BELOIT IES TROUT MY: COREE CRY Ta aN A UTS

A25

4319 FRANKS v. BOWMAN TRANSP. CO.

shown that the claimant through no fault of his own has

failed to receive the suit letter, and the district court has so

found, as in this case, the delivery of the letter to the mailing

address cannot be considered to constitute statutory notifica-

tion.

{3} Our conclusion that Franks’ Title VII is not barred

does not end the matter, for special limitations considerations

apply to that aspect of the Title VII action which seeks back

pay. First, the proper limitations statute must be selected

and applied. Under the borrowing principle of Beard v.

Stephens, 5th Cir. 1967, 372 F.2d 685, when an action is

brought for back pay or similar damages under a federal

statute which contains no built-in limitations period, the fed-

eral district court must apply the statute of limitations of the

state where it sits which would be applicable to the most

closely analogous state action. The instant case was brought

in a Georgia federal court. We have held in a recent case that

the Georgia statute governing a back pay award in a § 707

pattern or practice suit brought by the Attorney General or in

a § 706 private action such as the instant one, is Ga.Code

§ 3-704,’ which prescribes a two-year limitations period for

actions to recover wages, overtime, and damages due under

statutes respecting the payment of wages. United States v.

Georgia Power Company, 5th Cir. 1973, 474 F.2d 906, 924.

Under the Georgia Power case, then, it is clear that the

two-year statute applies.

(4) For Franks’ individual claim the statute began running

on the date of his dismissal May 10, 1968. The running of the

limitations period was tolled by the filing of a complaint with

7. Section 3-704 reads in pertinent part:

All suits for the enforcement of rights accruing to individuals

under statutes, acts of incorporation, or by operation of law, shall

be brought within 20 years after the right of action shall have

accrued: Provided, however, that all suits . . . for the

recovery of . . wages and overtime, subsequent to March

20, 1943, shall be brought within two years after the right of

action shall have accrued.

A26

FRANKS v. BOWMAN TRANSP. CO. 4320

the EEOC on May 13, 1968, three days later, and it remained

tolled “during such time as the processes of agency reconcilia-

tion are at work and until notification to the complainant that

voluntary compliance cannot be obtained.” United States v.

Georgia Power Co., supra at 925. As we have indicated above,

the notification was not ultimately made until the second suit

letter was received on April 14, 1971. On this date the

limitations period began running again and continued to run

for twenty-one days, until suit was filed on May 5, 1971.

Thus the limitations period ran for a total of less than one

month, far less than the two year limitations period, before

the suit was filed.

Under the same borrowing principle of Beard v. Stephens,

supra, we conclude that Ga.Code § 3-704 applies to Franks’

action under § 1981. The first sentence of that section

providing a twenty-year period for “all suits for the enforce-

ment of rights accruing to individuals under statutes

; .”, plainly did not bar Franks’ § 1981 action. The

proviso of the § 3—704 prescribing a two-year period for suits

to recover wages applies to the § 1981 action in the same way

as to the Title VII action. The running of the limitations

period was tolled during the period between the filing of the

May 13, 1968 complaint with the EEOC and the receipt of the

second suit letter on about April 14, 1971.

[5] One further matter relating to the time suit was filed

remains to be considered, and that is the applicability of the

doctrine of laches. Title VII empowers the federal district

court to

enjoin the respondent from engaging in such unlawful

employment practice, and order such affirmative action as

may be appropriate, which may include . . . rein-

statement or hiring of employees, with or without back pay.

§ 706(g), 42 U.S.C.A. § 2000e-5(g). Thus, the action and the

relief authorized are essentially equitable in nature. This is

A27

4321 FRANKS v. BOWMAN TRANSP. CO.

true not only of traditional injunctive relief which may be

granted, but also of the back pay award.

The demand for back pay is not in the nature of a claim for

damages, but rather is an integral part of the statutory

equitable remedy, to be determined through the exercise of

the court’s discretion, and not by a jury.

Johnson v. Georgia Highway Express, Inc., 5th Cir. 1969, 417

F.2d 1122. The § 1981 action, insofar as it corresponds to the

Title VII action, must also be considered essentially equitable.

In an equitable action, equitable defenses may be raised, and

these include the doctrine of laches. In the proper case, laches

might be applied to bar a claim entirely, or it might bar only

part of the remedy sought, such as the back pay award or a

portion of it. See United States v. Georgia Power Co., supra

at 923. We do not intimate any view as to the applicability of

laches to this case, for the district court should make such a

determination in the first instance.

{6] Our holding that Franks’ individual claim was not

barred by limitations necessitates reversal of that portion of

the district court’s judgment dismissing it. Since the question

of Franks’ tardiness in initiating suit was called to the atten-

tion of the district court, on remand it should specifically

consider the applicability of laches.” Subject to its determina-

tion as to the applicability of the doctrine of laches, the

district court should enter judgment for Franks and fashion

an appropriate re nedy, since it has already found that he

established the factual bases of his claim.

II. Lee’s Individual Claim: Significance of

Arbitration Award

Lee, a Negro with seven years’ experience as a truck driver

and an excellent driving record, originally applied to Bowman

8. Appellants contend that the issue was not adequately raised

below. When the issue of tardy filing was brought sufficiently to

the attention of the court to be the ground for its ruling, however,

we think it must be considered to have been adequately raised.

A28

FRANKS v. BOWMAN TRANSP. CO. 4322

for a driving job in January of 1970, but he was not hired, the

district court found, because of his race. Upon learning that a

white driver had been hired shortly after his rejection, Lee

filed a complaint with the EEOC on February 26, 1970,

charging a racially discriminatory refusal to hire. In response

to the charge and to pressure from the Office of Federal

Contract Compliance, Lee was hired on September 18, 1970 at

the Birmingham terminal as one of Bowman’s first black

over-the-road truck drivers.

After working as a model employee for several months, Lee

was discharged on March 18, 1971. The facts surrounding his

discharge have been in dispute throughout this litigation.

When Lee brought his truck to the Bowman garage which

serves the Birmingham area, a “stinger” was found in the fuel

pump of his engine. A stinger is a wooden peg used to

override the engine’s governor, the device which limits the

maximum revolutions per minute and thereby the truck’s

maximum speed. Bowman claims that it discharged Lee

because of the stinger in his truck’s engine under a firm,

long-standing company policy requiring discharge of any em-

ployee whose fuel pump has been altered. Lee denies any fuel

pump tampering and stresses the opportunities of others,

including Bowman’s white mechanics, to plant the stinger for

reasons of racial prejudice.

Lee’s discharge was submitted to binding arbitration under

contractual grievance procedures and on October 25, 1971 an

award favorable to Lee resulted. The arbitrator found that

although the “facts raise[d] a strong inference approaching a

presumption in the Company’s favor,” there was a “failure of

proof” because the possibility of fuel pump tampering by

other employees was not adequately eliminated. Reinstate-

ment and back pay for one montk the maximum allowable

under the collective bargaining agreement, were ordered.

Bowman sent the back pay to Lee, and tendered reinstate-

ment in his old Birmingham-based job on October 29, 1971.

Lee refused to accept reinstatement at Birmingham, however,

A29

4323 FRANKS v. BOWMAN TRANSP. CO.

and demanded a transfer to Atlanta and back pay for all

months from the time of his discharge. Bowman refused to

comply with these demands, and the district court found that

this refusal was not racially motivated.

Independently of the grievance procedures under the collec-

tive bargaining agreement Lee filed a second complaint with

the EEOC on March 19, 1971, charging a discriminatory

discharge. Lee’s first EEOC charge, it will be recalled, was

for the discriminatory refusal to hire. On June 22, 1971, Lee

received a suit letter authorizing a Title VII action because of

the discriminatory refusal to hire, and on July 12, 1971, he

received another suit letter with respect to the alleged dis-

criminatory discharge. He filed a timely motion to intervene

in Franks’ suit and was subsequently permitted to intervene

on behalf of himself individually and other similarly situated

black Bowman employees and job applicants. Lee’s complaint

invoked the court’s jurisdiction under both Title VII and

§ 1981, as did Franks’ original complaint.

The district court found for Lee with regard to the original

refusal to hire and awarded him a total of $6,124.58 in back

pay. No appeal is taken from this part of the district court’s

judgment.

[7] “In view of the undisputed fact that a stinger was

found in Lee’s truck and in light of Bowman’s mandatory

discharge policy for fuel pump tampering, the district court

found that Lee failed to prove his discharge was racially

motivated. On the basis of the evidence before it, it deter-

mined:

The mandatory discharge rule for alteration of the fuel

pump is one of long-standing. Between 1967 and trial,

there were some 30 terminations or permitted resignations

for violation of this rule. Some of the discharged drivers

had received prior warnings for violations or other company

rules not leading to mandatory discharge; but some, like

Lee, had no prior warnings and possessed clean records at

the time. There was no requisite of previous offense to the

A30

FRANKS v. BOWMAN TRANSP. CO. 4324

discharge. Most significantly, there is no indication and no

evidence that any other driver, Black or white was ever

NOT discharged for violation of the standing rule. It is

concluded that race was not a factor in the discharge of the

intervenor Lee.

Appellant Lee challenges as clearly erroneous the district

court’s finding that the discharge was not racially discrimina-

tory. Although the facts surrounding the discovery of the

stinger leave ample room for suspicion that the fuel pump was

altered by another employee besides Lee,-on the record before

us we cannot hold the district court’s determination clearly

erroneous.

[8,9] The primary basis for Lee’s factual attack is his

contention that the district court erred in failing to give

greater weight to the arbitration award in his favor in making

its findings.’ We cannot agree. The federal court is the final

arbiter in cases involving Title VII rights, and “the arbitra-

tor’s determination under the contract has no effect on the

court’s power to adjudicate a violation of Title VII rights.”

Hutchings v. United States Industries, Inc., 5th Cir. 1970, 428

F.2d 303, 313 (emphasis in original). Invoking contractual

grievance procedures does not constitute an election of reme-

dies which automatically bars a Title VII claimant from the

court, and an arbitration award cannot be pleaded as a de-

fense to a Title VII suit under the doctrine of res judicata.

See id. at 314; Rios v. Reynolds Metals Co., 5th Cir. 1972, 467

F.2d 54; Bowe v. Colgate-Palmolive Company, 7th Cir. 1969,

416 F.2d 711, 715.

[10] To be sure, arbitration awards and grievance determi-

nations “may be properly considered as evidence” in a Title

VII case to the extent they are relevant to the questions

before the court. Hutchings v. United States Industries, Inc.,

supra at 314 n. 10. And when the same issues are presented

9. The district court concluded: “The court is not bound by the

arbitration award in any way. . . . This is especially true

where race was given no consideration by the arbitrator.”

CUP TERI NETO POLE

A31

4325 FRANKS v. BOWMAN TRANSP. CO.

in arbitration as in a Title VII lawsuit, the court has discre-

tion under certain circumstances to defer to the award, just as

the National Labor Relations Board may in a case properly

before it defer to an arbitrator’s determinations. See Lodge

No. 12, District No. 37, International Association of Machinists

v. Cameron Iron Works, Inc., 5th Cir. 1958, 257 F.2d 467, 473.

We have recently had occasion to delineate in some detail the

circumstances under which such discretionary deference by a

court is proper:

We hold that the federal district court in the exercise of

its power as the final arbiter under Title VII may follow a

like procedure of deferral [i. e., a procedure like that of the

NLRB] under the following limitations. First, there may

be no deference to the decision of the arbitrator unless the

contractual right coincides with rights under Title VII.

Second, it must be plain that the arbitrator’s decision is in

no way violative of the private rights guaranteed by Title

VII, nor of the public policy which inheres in Title VII. In

addition, before deferring, the district court must be satis-

fied that (1) the factual issues before it are identical to

those decided by the arbitrator; (2) the arbitrator had

power under the collective bargaining agreement to decide

the ultimate issue of discrimination; (3) the evidence

presented at the arbitral hearing dealt adequately with all

factual issues; (4) the arbitrator actually decided the factu-

al issues presented to the court; (5) the arbitration proceed-

ing was fair and regular and free of procedural infirmities.

Rios v. Reynolds Metal Company, supra at 58.

{11] In this case it is clear that complete deference to the

arbitration award would have been improper. The contractu-

al issue presented to the arbitrator was whether the company

proved, under a “strict proof” standard, that Lee had tam-

pered with the fuel pump, and not whether the discharge was

for racial reasons. The contractual right not to be dismissed

unless “cause” could be demonstrated was not identical to the

Title VII not to be discharged for reasons of race. Further,

A32

FRANKS v. BOWMAN TRANSP. CO. 4326

the arbitrator’s finding could be of little if any evidentiary

value. A finding that the stinger in the fuel pump was not

Bowman’s real reason for discharging Lee would have had an

important bearing on the question of racial motivation

presented to the court, but the arbitrator made no such

finding. Rather, the arbitrator found only that the company

failed to prove fuel pump tampering, and did not deal with

Bowman’s motivation. In arriving at this finding, the arbi-

trator imposed on the company the burden of proof, and it

evaluated the evidence under a “strict” standard of proof,

under which “reasonable doubts should be resolved in favor of

the grievance.” Thus, in the final analysis, the arbitrator

determined only that the company’s asserted basis for the

discharge—that Lee had tampered with the fuel pump—was

not demonstrated beyond a reasonable doubt. This finding

could be of little value to Lee in carrying his burden of

proving racial motivation at trial or to the district court in

resolving the factual issues before it. It did not err or abuse

its discretion in failing to give greater weight to the arbitra-

tion award.

Accordingly, the judgment of the district court insofar as it

relates to Lee’s individual claim is affirmed.

III. Adequacy of Relief to the Class

Appellants argue that the record in this case calls for

further affirmative relief to the class of discriminatees, be-

yond that granted in the injunction of the district court.

Specifically, they seek (1) allowance of full company seniority

for employees who have been discriminated against, (2) the

temporary use of a mathematical formula to ensure the hiring

of more black over-the-road drivers in the future and the

ordering of public recruitment for black over-the-road drivers

and for black office workers, (3) mandatory training programs

to upgrade the skills of black employees and applicants, and

(4) retention of jurisdiction by the district court to ensure

compliance. Additionally, appellants contend the district

A33

4327 FRANKS v. BOWMAN TRANSP. CO.

court abused its discretion in refusing to award back pay to

non-named class members. We are compelled to agree that

further relief in some respects is required, as we indicate

below.

A. Bowman’s Operations and Policies

Bowman is an interstate trucking business wi.t. its main

terminals located in Atlanta, Birmingham, Charlotte, and

Richmond. Its employees fall into four categories: (1) the

over-the-road (OTR) drivers, (2) city drivers and dock workers,

(3) Maintenance Department workers (including employees in

the Tractor Shop, the Trailer Shop, and the Tire Shop), and (4)

office, sales, and clerical employees. Employees in the first

three categories belong to the union, and the organizational

lines separating them are established in the collective bargain-

ing agreements between Bowman and the union. The office

and clerical employees are not unionized, but, the district

court found, “in essence [they] constitute another department

at each terminal.” The OTR drivers are the long-distance

truck drivers; they number four hundred to five hundred

company-wide, and they earn the highest wage paid to non-

management employees. The city drivers, of whom about

fifty are employed at the Atlanta terminal, drive trucks on

local missions at the respective terminals, and the one hundred

fifty to two hundred dock workers perform the manual labor

of loading and unloading trucks. The city drivers and dock

workers are at the middle of the wage scale. Within the

Maintenance Department, which has about one hundred twen-

ty employees in Atlanta, the jobs in the Tire Shop require the

most menial work and bring the lowest pay, while the Tractor

Shop and the Trailer Shop jobs require mechanical skill and

pay more. Each terminal is a hiring center for OTR drivers,

who operate system-wide, as well as for other categories of

employees, whose work is localized at the terminal. In its

class aspects, this suit involves all OTR drivers throughout

1A or cierceremromeamenene

A34

FRANKS v. BOWMAN TRANSP. CO. 4328

Bowman’s system, and employees in the other three categories

at the Atlanta terminal only.

Before 1968 Bowman followed a conscious policy of keeping

its employees segregated according to race. With the excep-

tion of two black “cleanup men” in the Trailer Shop, blacks

were employed only in the Tire Shop.” This was the only

10. The district court found that the following chart

represented accurately the distribution of jobs accord-

ing to race at the times indicated:

July, 1965 March, 1968 August, 1971

Dept ./Job Blacks-Whites Blacks-Whites Blacks-Whites

Office & i?) 23 0 27 0 42

Managerial

Sales Personnel 0 6 0 5 ie) 5

Office/Clerical 0 27 0 63 0 53

Ship Parts Clerk 0 8 0 9 is) 9

Over-the-Road

Drivers

Atlanta Terminal 0 360 0 361 18) 230

All Other ie) 55 0 103 1l 269

TOTAL is) 415 ie) 464 11 499

City Driver/

Dock Jobs

City Drivers 0 79 0 80 3 81

Checkers 0 23 0 127 4 103

Dock Workers (9) 84 0 94 6 60

TOTAL 8) 186 0 301 13 244

Shop Workers

Mechanics 0 70 is) 92 ie) 63

Trailer Shop = - = - i) 36

Grease/Oil Men 0 6 0 8 0 4

Tire Shop 7 1 9 3 16 2

Clean-up Men 24 > 1 1 4 0

Janitors (¢) 1 6. 2 1 1

TOTAL 7 78 10 106 21 106

A35

4329 ‘ FRANKS v. BOWMAN TRANSP. CO.

subdivision into which blacks were hired, and transfer to other

shops within the Maintenance Department or to other depart-

ments was not permitted. The Tire Shop had predominantly

black employees and white supervisors. Since August 1968

Bowman has hired a few blacks into the previously all-white

OTR and City Driver and Doch Departments, but as of the

time of trial in March of 1972 it had not hired any blacks into

the higher paying mechanic jobs in the Maintenance Depart-

ment or as office or clerical workers.

Before 1967 Bowman prohibited sits tteabdil trans-

fers flatly. The collective bargaining signed in 1967 eliminat-

ed Bowman’s no-transfer policy ard opened the way for

nonracial hiring in all departments, but the agreement contin-

ued to recognize departmental seniority.. The district court

found that the maintenance of the departmental seniority

“effectively penalized any Senior Blacks wishing to transfer

to a previously all-white department in favor of junior whites

already employed there.”

The first black was hired into the previously all-white City

Driver and Dock Department on August 15, 1968.

Despite the collective bargaining agreement provision man-

dating hiring without regard to race, Bowman maintained

until September of 1970 4 conscious unwritten policy of not

hiring blacks as OTR drivers. The apparent source of the

resistance to change in this department was the unwillingness

of the white drivers to “ride double” with blacks to train them

for the job or to share bunk and shower facilities w'th them

on the road. In 1970 the company began’ receiving greater

numbers of applications from blacks for OTR jobs. Under

pressure from the Office of Federal Contracts Compliance to

hire OTR drivers without regard to race, and partly in re-

sponse to the EEOC charge filed by appellant Lee, Bowman

hired its first OTR driver on September 11, 1970. For about a

year black OTR drivers were hired only at the Birmingham

terminal, where Bowman housed them in separate facilities.

A36

FRANKS v. BOWMAN TKANSP. CU. 4550

Other black OTR drivers were first hired in Richmond on

September 12, 1971, in Atlanta on November 21, 1971, and in

Charlotte on February 15, 1972. The record reflects that

Bowman has been hiring black OTR drivers at a sharply

decreasing rate since the first hirings in September of 1970

under pressure. During the last four months of 1970, ten of

the thirty-six new OTR drivers hired, or 28%, were black.

‘During the twelve months of 1971, thirteen of one hundred

one, or 12%, of the new OTR drivers were black. In the first

two months of 1972, immediately before trial, Bow:nan hired

fifty OTR drivers, only four of whom, or 8%, were black. On

_ February 26, 1972, one month before trial 3.3% of the total

number of OTR drivers employed by Bowman were black."

The provision of the 1967 collective bargaining agreement

abolishing the no-transfer rule and requiring hiring without

regard to race has had no effect in the Maintenance Depart-

ment. Bowman has never hired a black mechanic in the

Tractor Shop or in the Trailer Shop, either “off the street” or

as a transfer from the Tire Shop. Bowman has not hired a

black as a “grease man” since that position became a training

step to the mechanic positions. When blacks have attempted

_ to transfer from the Tire Shop to better jobs in the Mainte-

nance Department, management has discouraged the move by

informing the transfer-aspirant that he must resign for a

period of six weeks and then reapply, or simply that transfers

are not permitted. Further, although any Maintenance

Department employee may theoretically use his full depart-

mental seniority in bidding on any Maintenance Department

yds eo tenes tee maori. Tusien an tails in tee

month before trial, tT a ne ae

3.3% at the time of trial.

A37

4551 FKANKS v. BOWMAN TRANSP. CO.

job, inter-shop transfer attempts by seniority bidding are

largely prevented by the expedient of posting job openings

only in the shop where they occur, so that employees in the

other shops remain ignorant of them. For example, an open-

ing in the Tractor Shop would be posted only in the Tractor

Shop area, so that Tire Shop employees with seniority would

not become aware of it and thus have a meaningful opportuni-

ty to bid for it.

At the time of trial Bowman had never hired a biack office

worker at the Atlanta terminal. Clerical job vacancies are

not advertised publicly, but are communicated by current

clerical employees to acquaintances by word of mouth. Only

three or four blacks applied for clerical positions in the five

years preceding trial. Until spring of 1971 Bowman used the

race-oriented Wonderlic test to screen clerical job applicants

and it rejected two black applicants on the basis of the scores

obtained.”

The district court found that Bowman ‘iad not practiced

racial discrimination in hiring office and clerical workers.”

12. The use of the Wonderlic test to screen job applicants was held

to constitute prohibited racial discrimination in Griggs v. Duke

Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 because

it yielded significantly different results for whites and blacks and

was not shown to produce job-related information. Bowman has

made no attempt to show that the Wonderlic test results were

related to the requirements of its clerical jobs.

13. The district cous<’s findings with regard to the office and clerical

workers were as follows:

The office employment situation stays rather stable and although

there is a substantial number of applicants each year, the hiring

rate is very low. In the past five years, there have only been a

total of three or four Black applicants out of an average of 25

each year. Each of these applicants has been treated no different-

ly from any other applicant and race has not been a factor in the

A38

FRANKS v. BOWMAN TRANSP. CO. 4332

With regard to the OTR drivers, dock workers and city drivers

and Maintenance Department employees, it found that, while

discriminatory policies had existed in the past, they had, by

the time of trial, given way to “an official policy against

discriminatory hiring in all of its [Bowman’s] hiring prac-

tices.” The departmental seniority system, however, perpetu-

ated the effects of past discrimination.

B. Relief Granted by the District Court

The district court’s order defining the classes represented

and granting injunctive relief reads as follows:

In accordance with the findings of the Court, the defend-

ant, BOWMAN TRANSPORTATION COMPANY, and the

defendants, INTERNATIONAL UNION OF DISTRICT 50,

LOCAL NO. 13600, ALLIED AND TECHNICAL WORK-

ERS OF THE UNITED STATES AND CANADA and

INTERNATIONAL UNION OF DISTRICT 50, ALLIED

AND TECHNICAL WORKERS OF THE UNITED

STATES AND CANADA, their officers, agents, employees,

servants, and all persons in active concert or participation

with them, are hereby permanently enjoined and restrained

from discriminating against any Black applicant or Black

employee of the defendant, Bowman Transportation Com-

pany at its Atlanta Terminal or elsewhere for over-the-road

drivers in violation of Title VII of the Civil Rights Act of

1964.

The defendants are enjoined from implementing a senior-

ity system which would interfere with the rights under this

judgment of black employees in the classes herein defined.

AFFECTED CLASSES.

The affected classes are defined by the court as follows:

CLASS 1. All Black employees at the Atlanta Terminal

who were hired prior to August 15, 1968.

A39

4333 FRANKS v. BOWMAN TRANSP. CO.

CLASS 2. All Black employees employed at the Atlanta

Terminal in the Maintenance Department prior to May 1,

1970.

CLASS 3. All Black applicants who applied for positions

as over-the-road drivers prior to January 1, 1972.

CLASS 4. All Black employees who applied to transfer to

over-the-road drivers positions prior to January 1, 1972.

ORDERS.

The members of CLASS 1 have all been restricted to jobs

in the Tire Shop prior to August 15, 1968, by the racially

discriminatory policies of the defendant company. Hereaf-

ter any member of the affected class who competes with a

non-member in a bid to transfer or be promoted within the

company shall be entitled to compete on the basis of compa-

ny seniority until such date plus any departmental seniority

thereafter, rather than departmental seniority only.

The members of CLASS 2 have been restricted to jobs in

the Tire Shop and prevented from transferring to the

Tractor and Trailer Shops within the Maintenance Depart-

ment by the racially discriminating policies of the defendant

company. All such members shall be notified of the right to

bid within the department at the next annual bidding. If

bids are lodged and the member is deemed qualified, he

shall thereafter be credited with departmental seniority

from the date of original employment in all future bidding.

The members of CLASS 3 have been effectively denied

employment as over-the-road drivers prior to January 1,

1972. All Black applicants as revealed by the company

records prior to such date shall be notified in writing of

their right to be considered for employment by the company

within 30 days and given 30 days thereafter to indicate their

interest. If consideration is requested, then they shall be

afforded priority in consideration over all other applicants

until each such applicant, in chronological order, has been

accepted or rejected by the company. Two applicants,

A40

FRANKS v. BOWMAN TRANSP. CO. 4334

' Harbor and McLoughlin, shall be considered within 15 days

by the company. In any such applications, race shall not be

used by the company as a means of denying employment to

any applicant.

The members of CLASS 4, who sought to transfer from a

job as “city driver” or elsewhere to road driver shall like-

wise be afforded priority in consideration for such employ-

ment in chronological order along with the members of

CLASS 3.

A copy of this order, or such substituted order as agreed

upon by counsel, shall be posted in a conspicuous place in

each department and sub-department of the Defendant,

Bowman Transportation Company’s Atlanta Terminal and

in the office of each terminal and warehouse of the Defend-

ant elsewhere for the period of 60 days. In addition, all

bids shall hereafter be posted in each sub-department and

shop in the Atlanta Terminal.

The court’s conclusions of law indicate that Franks rep-

resented the first two of the “affected classes” and Lee

represented the second two. Analytically, a fifth class is

implicit in the first paragraph of the district court’s order—

the class of all black job applicants and employees of Bowman.

The four enumerated categories may be considered subclasses

within this larger class. Their apparent purpose is to deline-

ate the groups which the district court concluded were en-

titled to a special affirmative remedy, beyond the general

prohibition against future discrimination. August 15, 1968,

the date used to define class 1, is the day the first black dock

worker at the Atlanta terminal was hired. The district court

evidently found that the discrimination barrier which exclud-

ed blacks from employment in the City Driver and Dock

Department wholly dissolved on that day. The dates used to

define the remaining classes are not tied to concrete events in

the record; it appears that the district court believed discrimi-

nation in the relevant areas ceased on approximately the days

eee

A4l

4335 FRANKS v. BOWMAN TRANSP. CO.

indicated. Although appellants cast their arguments in terms

of remedy, and do not directly assail the definition of the

classes, or subclasses, and although we shall in the remainder

of this opinion speak in terms of remedies, it is clear that

modifications in the remedy afforded could necessitate re-

drawing to some extent, the classes. Where appropriate, such

redrawing should be performed on remand. See Johnson v.

Georgia Highway Express Co., 5th Cir. 1969, 417 F.2d 1122,

1124.

C. Standard of Review

The power of the district court to fashion an equitable

remedy is broad:

Once a right and a violation have been shown, the scope of

the district court’s equitable powers to remedy past wrongs

is broad, for breadth and flexibility are inherent in equita-

ble remedies.

Swann v. Charlotte-Mecklenburg Board of Education, 1971,

402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. Generally,

the exercise of this equitable discretion will be disturbed on

appeal only for an abuse of discretion.

[12] The limits of the district court’s discretion are marked

by its duty to carry out within practicable limits the purpose

of Title VII, which is to make the discriminatee whole and to

remedy the effects of past discrimination. Vogler v. McCarty,

Inc., 5th Cir. 1971, 451 F.2d 1236, 1237; cf. Louisiana v. United

States, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d

709. To accomplish this end, the district courts are not

“limited to simply parroting the Act’s prohibitions.” Local 53

of International Association of Heat & Frost Insulators &

Asbestos Workers v. Vogler, 5th Cir. 1969, 407 F.2d 1047, 1052.

Rather they should order “such affirmative action as may be

appropriate.” § 706(g) of the Civil Rights Act of 1964, 42

U.S.C.A. § 2000e-5(g). If an appellate court can determine

from the record that the relief granted is not sufficient to

A42

FRANKS v. BOWMAN TRANSP. CO. 4336

make the discriminatee whole as far as possible, then the

district court’s order falls outside the bounds of its discretion.

For some recurrent problems, we have had occasion in previ-

ous cases to discuss the minimum appropriate remedy, and

such cases provide more specific limits and guidelines for the

exercise of discretion. See, e. g., Local 189, United Papermak-

ers and Paperworkers, AFL-CIO, CLC v. United States, 5th

Cir. 1969, 416 F.2d 980, cert. denied 1970, 397 U.S. 919, 90 S.Ct.

926, 25 L.Ed.2d 100 (seniority relief).

D. Asserted Inadequacy of the District Court’s Decree

1. Seniority Relief

The district court’s order allowed members of class 1 (all

present black employees at the Atlanta terminal who were

hired before August 15, 1968) to compete for jobs on the basis

of company seniority accumulated before August 15, 1968, the

date the first black dock worker was hired, and departmental

seniority accumulated thereafter. Appellants characterize

this aspect of the decree as “halfway seniority relief.” They

contend (1) that members of class 1 should be allowed to use

company seniority accumulated after as well as before August

15, 1968, (2) that members of class 4 (present Bowman em-

ployees who applied to transfer to OTR positions before

January 1, 1972) who are hired as OTR drivers pursuant to the

court’s decree should be able to use company seniority for all

purposes in the OTR Department, and (3) that members of

class 3 (pre-January 1, 1972 black OTR applicants) who are

hired pursuant to the court’s decree should be awarded con-

structive OTR departmental seniority beginning on the date

they would have been hired but for the discrimination.

[13-16] When a departmental seniority system perpetu-

ates the effect of past discrimination it is an unlawful employ-

ment practice proscribed and remediable under Title VII. E.

g., United States v. Bethlehem Steel Corporation, 2nd Cir.

1971, 446 F.2d 652; Robinson v. Lorillard Corp., 4th Cir. 1971,

A43

4337 FRANKS v. BOWMAN TRANSP. CO.

441 F.2d 791, cert. dismissed 404 U.S. 1006, 92 S.Ct. 573, 30

L.Ed.2d 655; Local 189, United Papermakers and Paperwork-

ers, AFL-CIO, CLC v. United States, supra; Quarles v. Philip

Morris, Inc., E.D.Va.1968, 279 F.Supp. 505. Though not as

drastic as a rigid no-transfer rule, a departmental seniority

system discourages transfers and thereby locks a discrimina-

tee into his inferior job by threatening him with loss of his

accumulated seniority if he should transfer. “In any industry

loss of seniority is a critical inhibition to transfer.” United

States v. Jacksonville Terminal Co., 5th Cir. 1971, 451 F.2d

418, 453, cert. denied 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d

815. That the system is racially neutral on its face does not

save it under Title VII if its effect is to “cut into the

employees’ present right not to be discriminated against on

the ground of race.” Local 189, supra at 988; See also United

States v. Jacksonville Terminal Co., supra at 451. The federal

courts’ power to modify or suspend the operation of a discrim-

inatory seniority system is not affected by the fact that the

seniority system has been established in a private, collective

bargaining agreement. Vogler v. McCarty, Inc., 5th Cir. 1971,

451 F.2d 1236. The only ground upon which a discrimination-

perpetuating seniority system may be defended is that of

business necessity. “When a policy is demonstrated to have

discriminatory effects, it can be justified only by a showing

that it is necessary to the safe and efficient operation of the

business.” Jones v. Lee Way Motor Freight, 10th Cir. 1970,

431 F.2d 245, 249; see Robinson v. Lorillard Corp., supra at

797; Local 189, supra.

In this case it is undisputed that the members of class 1

i were originally relegated to inferior jobs in the Tire Shop as a

result of Bowman’s racially discriminatory hiring practices.

Further, it is clear that the departmental seniority system has

the forbidden effect of locking discriminatees into the pattern

thus created. Neither Bowman nor the union has attempted

to defend the seniority system as a “business necessity.” As

the district court recognized, class 1 members are entitled to

a a

A4%4

FRANKS v. BOWMAN TRANSP. CO. 4338

relief from the locking-in effect of the departmental seniority

system. The question presented is what form the remedy

must take and how far it must go.

The leading case in this Circuit on seniority relief under

Title VII is Local 189, United Papermakers and Paperworkers,

AFL-CIO, CLC v. United States, 5th Cir. 1969, 416 F.2d 980,

cert. denied 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100,

aff’g, E.D.La.1969, 301 F.Supp. 906. There, Judge Wisdom

endorsed for ‘our Court the “rightful place” approach to

seniority problems.

A “rightful place” theory stands between a complete

purge of “but-for” effects [and] maintenance of the status

quo. The Act should be construed to prohibit the future

awarding of vacant jobs on the basis of a seniority system

that “locks in” prior racial classification. White incumbent

workers should not be bumped out of their present positions

by Negroes with greater plant seniority; plant seniority

should be asserted only with respect to new job openings.

This solution accords with the purpose and history of the

legislation.

Id. at 988. He concluded that the decree entered by the

district court in that case accorded with the rightful place

interpretation of the Act. That decree “permanently abol-

ished” the offending “job seniority system” and allowed discri-

minatees to compete for jobs on the basis of “mill seniority,”

which was to be computed from the beginning of the em-

ployee’s service at the mill, regardless of the job slot he

occupied, up to the date of his bid. United States v. Local

189, United Papermakers and Paperworkers, AFL-CIO, CLC,

E.D.La.1969, 301 F.Supp. 906, 919.

In the United States v. Jacksonville Terminal Co., 5th Cir.

1971, 451 F.2d 418, cert. denied 406 U.S. 906, 92 S.Ct. 1607, 31

14. The “rightful place,” “freedom now,” and “status quo” theories

were first distinguished and analyzed in Note, Title VII, Seniority

Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260

(1967).

A45

4339 FRANKS v. BOWMAN TRANSP. CO.

L.Ed.2d 815, we applied the Local 189 principles and found

that the “craft and class” seniority system at issue in that case

was a discriminatory unlawful employment practice under

Title VII. We held that an appropriate remedial decree

should grant to discriminatees “qualified to fill vacancies

the right to bid for . . . positions on the basis

. of Terminal seniority (time worked for the employer) rather

than craft or class seniority.” Id. at 454. In laying down

guidelines which the decree should follow, we specified that

discriminatees should be allowed to use Terminal seniority

“until they successfully bid for, and retain after any on-the-

job probationary or training period (if required), positions

outside the craft or class which they occupy at the time of the

District Court’s decree.” Id. at 458-459.

i In United States v. Bethlehem Steel Corp., 2nd Cir. 1971,

~ 446 F.2d 652, the Second Circuit established similar guidelines.

Disapproving a discrimination-perpetuating departmental se-

niority system, it allowed discriminatees to transfer with

seniority carryover “only once, and only during the next two

years.” Id. at 666. This once-only, two-year limitation was

‘ considered adequate to allow the discriminatee an adequate

opportunity to break out of the racial pattern while not giving

him a preferential advantage or imposing an unnecessarily

unstable situation on the employer:

Because a transferee will have only one opportunity of

limited duration to transfer to a formerly “white” depart-

ment, the Lackawanna plant will not be thrown into a

chaotic game of musical chairs. . . . Nor will any

‘. employee have superseniority.

Id. at 666.

In each of these cases the court has allowed discriminatees

to use full company seniority to compete for job openings for

at least a reasonable time after the entry of the court’s

decree. In Local 189 the discriminatory system was “perma-

nently abolished” and mill seniority substituted for discrimina-

tees, presumably also permanently. In Jacksonville Terminal

porwr OCIS tA NA PRIORI RE a

A46

FRANKS v. BOWMAN TRANSP. CO. 4340

discriminatees could use company seniority for transfer pur-

poses only once but the use might possibly be delayed for a

lengthy period. In Bethlehem Steei the court imposed a

one-time or two-year limitation on discriminatees’ right to

transfer with full seniority carryover.”

[17] Both the precedents and the nature of the wrong, we

think, indicate that the remedy afforded by the district court

should allow to employees locked into old racial patterns by

the departmental seniority system the use of full company

seniority for transfer purposes for a reasonable time and for

all purposes after transfer in the new department. The

locking-in effect of departmental seniority on present em-

ployees does not cease as of the date that discrimination as to

new hirees ceases. To allow for purposes of transfer—i.e.

bidding on a new job in a different department—the use of

company seniority accumulated only up to the date on which

discrimination in hiring at the terminal ceased in the past

would force discriminatees to compete with non-discriminatees

on an unequal footing in the present. To permit only partial

seniority carryover would only reduce the penalty which a

discriminatee would suffer by transferring, but would not

eliminate it. The district court’s decree should dissolve the

barrier to transfers completely by allowing the use of full

company seniority. Pettway v. American Cast Iron Pipe Co.,

5th Cir. 1974, —- F.2d —— [No. 73-1163, Apr. 29, 1974].

Further, the discriminatee should be allowed a reasonable

time for using company seniority to escape the racial patterns

created in the past. The right of the discriminatee to transfer

with seniority carryover on the basis of company seniority

need not be extended indefinitely into the future, but a

15. Compare Quarles v. Philip Morris, Inc., E.D.Va.1968, 279 F.Supp.

505, where the court required a prompt declaration of interest by

discriminatees and prompt screening to identify those who would be

able to bid on the basis of company seniority, but designated no

cut-off date in the future after which those discriminatees would no

longer be able to use company seniority.

A47

4341 FRANKS v. BOWMAN TRANSP. CO.

reasonable time after the entry of the decree must be- al-

lowed."

This same reasoning applies to members of class 4 (black

employees who applied to transfer to OTR positions prior to

January 1, 1972) as well as other pre-January 1, 1972 black

employees who were excluded from OTR jobs at the time of

their original employment. Those who are found qualified for

OTR jobs should be allowed to bid for them on the basis of

company seniority and should not be penalized for accepting

them by loss of all or a portion of their accumulated company

seniority. They should be allowed to carry over accumulated

company seniority for all purposes in the OTR department.”

United States v. Bethlehem Steel Corp., supra.

In treating questions of seniority here, we do not, of course,

suggest that Bowman must hire without regard to qualifica-

tion. “Secretaries must be able to type. There is no way

around that necessity.” Local 189, supra at 989. And truck

drivers must be qualified to drive. But transfer applicants

must be accepted or rejected, as the district court’s decree

requires, on the basis of valid, non-racial criteria.

[18] In seeking application-date seniority for members of

class 3 (black applicants who applied for OTR jobs before

January 1, 1972) appellants ask us to take a giant step beyond

permitting job competition on the basis of company seniority.

16. We believe a one-transfer-only limitation would be reasonable

also, either in conjunction with or in addition to the time limitation,

since the discriminatee stands on a substantially equal footing with

his white contemporaries once he has escaped the confines of the

racial pattern in which he has been trapped.

17. In Bing v. Roadway Express, Inc., 5th Cir. 1973, 485 F.2d 441, we

dated seniority for transferring road drivers from the date of qualifi-

cation. In that case, Roadway had a flat requirement of one year’s

experience for road drivers, so that the qualification date was easily

calculable. To allow the use of company seniority before that date

would have placed the discriminatee in a better position than he

could have achieved without the discrimination. In this case, by

contrast, Bowman had no rigid one-year experience requirement. It

sometimes accepted OTR trainees with little or no prior driving

experience.

A48

FRANKS v. BOWMAN TRANSP. CO. 4342

They ask us to create constructive seniority for applicants who

have never worked for the company. Granting that the black

OTR applicants who were rejected on racial grounds suffered

a wrong, we do not believe that Title VII permits the exten-

sion of constructive seniority to them as a remedy. Section

703(h) of Title VII, 42 U.S.C.A. § 2000e—2(h), provides:

Notwithstanding any other provision of this title it shall not

be an unlawful employment practice for an employer to

apply different standards of compensation, or different

terms, conditions, or privileges of employment pursuant to a

bona fide seniority or merit system . . . provided that

such differences are not the result of an intention to dis-

criminate because of race, color, religion, sex, or national

origin.

The discrimination which has taken place in a refusal to hire

does not affect the bona fides of the seniority system. Thus,

the differences in the benefits and conditions of employment

which a seniority system accords to older and newer em-

ployees is protected as “not an unlawful employment prac-

tice.” Facing this problem in Local 189, Judge Wisdom wrote:

It is one thing for legislation to require the creation of

fictional seniority for newly hired Negroes, and quite anoth-

er thing for it to require that time actually worked in Negro

jobs be given equal status with time worked in white jobs.

; [C]reating fictional employment time for newly-

hired Negroes would constitute preferential rather than

remedial treatment.

No stigma of preference attaches to recognition of time

actually worked in Negro jobs as the equal of white time.

We conclude . . . that Congress exempted

from the anti-discrimination requirement only those senior-

ity rights which gave white workers preference over junior

Negroes.

A49

4343 FRANKS v. BOWMAN TRANSP. CO.

' Local 189, supra at 995. We are guided by his reasoning here.

The district court did not abuse its discretion in refusing to

create constructive seniority for black OTR applicants who

were rejected as a result of Bowman’s discriminatory policy.

In conclusion, we agree with appellants’ contention that

present Bowman employees who have been discriminated

against in the past and remain locked-in to the racial pattern

by departmental seniority must be allowed to compete for jobs

in other departments on the basis of full accumuiated compa-

ny senicrity, and that this remedy should be made available

for a reasonable time to permit them to take advantage of it.

On remand the decree should be modified in accordance with

these views. We do not agree that constructive seniority may

be created and awarded to those who are not employees.

2. Affirmative Hiring Relief

[19] Appellants next contend that the District Court’s

decree was deficient in failing to provide (1) that Bowman

must conduct an active recruitment campaign designed to

attract black OTR applicants and must hire one black OTR

driver for every new white OTR driver hired until twenty

percent of the OTR drivers are black, and (2) that Bowman

must actively recruit black office and clerical workers in a

manner specifically designed to inform the. black community

of clerical job opportunities. Appellants included both of

these measures in a proposed cacres which they submitted to

the District Court.

The record in this case shows that Bowman followed a

conscious policy of excluding blacks from its OTR Department

until September 1970, a time over five years after the effec-

tive date of the Civil Rights Act of 1964. The District Court

found that Bowman, although aware of its legal obligations,

intentionally continued to follow its discriminatory policy and

put off hiring black OTR driver's as long as it could. It began

hiring black OTR drivers in 1970 only under pressure from the

OFCC and at least one EEOC complaint. As we have often

A50

FRANKS v. BOWMAN TRANSP. CO. : 4344

observed, actions taken under such pressure and in the face of

threatened or pending litigation are at best “equivocal jin

purpose, motive and permanence.” Jenkins v. United Gas

Corp., 5th Cir. 1968, 400 F.2d 28, 33; see also Rowe v. General

Motors Corp., 5th Cir. 1972, 457 F.2d 348, even when they are

drastic and go far toward remedying the effects of past

discrimination. In this case, the sincerity and permanence of

Bowman’s conversion to nonracial employment practices are

all the more dubious in light of the steadily declining rate at

which Bowman has hired black OTR. drivers after September

of 1970 and in light of the small percentage (3.3%) of the OTR

Department which was black at the time of trial." Public

recruitment has been granted previously as a remedy in -

racial-discrimination ‘cases,” and we agree with appellants

that this case calls for such a remedy.

At the time the District Court entered its findings of fact,

conclusions of law, and order and decree in March, 1972, it did

not have the advantage of our en banc decision in Morrow v.

Crisler, 5th Cir. 1974, 491 F.2d 1053. Mortow considered the

precise charge made here: that the District Court failed to

order sufficient affirmative relief. The en banc court there

_ remanded for additional consideration where the events since

the District Court decree indicated the initial relief to have

been insufficient. : pe

We would vacate so much of the District Court’s decree as

denies the request for additional affirmative relief, and re-

' 18. See note 10, supra, & accompanying text. :

‘ 19. Public recruitment aimed at blacks was held mandatory in United

States v. Georgia Power Co., 5th.Cir. 1973, 474 F.2d 906, 926 and in

United States v. Sheet Metal Workers International Association,

Local 36, AFL-CIO, 8th Cir. 1969, 416 F.2d 123, 139-140. It was

also a part of the remedy granted in the following ‘cases: United

States v. Ironworkers Local 86, W.D.Wash.1970, 315 F.cupp. 1202,

aff'd 9th Cir. 1971, 443 F.2d 544, cert. denied 404 U.S. 984, 92 S.Ct.

447, 30 L.Ed.2d 367; United States v. Central Motor Lines, Inc.,

W.D.N.C.1971, 338 F.Supp. 532; United States v. United Association

of Journeymen, etc., Local No. 73, S.D.Indiana 1969, 314 F.Supp.

160. The power of the court under Title VII to order, as a remedial

measure, advertising and recruitment efforts aimed at minority

groups cannot be seriously questioned.

A51

4345 FRANKS v. BOWMAN TRANSP. CO.

mand to the District Court to update the record in this case,

which is now over two years old, and to consider what, if any,

additional affirmative relief may be necessary in light of

current facts and our decision in Morrow.

The hurdle which appellants must clear in order to be in a

position to demand public recruitment of black office workers

is the District Court’s finding that Bowman does not discrimi-

nate in hiring office workers. We conclude that appellants

have cleared this hurdle on the strength of their proof below

that Bowman had never hired a black office worker, relied on

word-of-mouth advertising to fill vacancies which became

available, and followed patently discriminatory practices in

connection with the employment of drivers by the Company.

The underlying findings upon which the District Court

relied in making its no-discrimination finding were: (1) only

three or four of the approximately twenty-five clerical appli-

cants each year are black, (2) blacks have shown little interest

in office jobs, and (3) black applicants are treated no differ-

ently than white applicants. Further pertinent facts appear-

ing in the record, which are not disputed, are (4) that Bowman

had never hired a single black office or clerical worker in

Atlanta by the time of trial, and (5) Bowman did not publicize

office job vacancies but relied on word-of-mouth advertising

by the current all-white office staff.

The most vociferous figure regarding the office and clerical

workers in this case is that Bowman’s office staff was at the

time of trial and had always been one hundred percent white.

This statistic alone raises a question concerning racial discrim-

ination in Bowman’s hiring of office workers. See United

States v. United Brotherhood of Carpenters and Joiners of

America, Local 169, 7th Cir. 1972, 457 F.2d 210, 214; United

States v. Hayes International Corp., 5th Cir. 1972, 456 F.2d

112, 120. It has not been shown to be the result of any

business necessity, or extenuating circumstances, or any cause

other than a preference for whites in hiring.

A52

FRANKS v. BOWMAN TRANSP. CO. 4346

The suggestion that the all-white composition of the office

staff is due to lack of interest on the part of blacks or the

small number of black applicents is singularly unpersuasive in

view of Bowman’s heavy reliance on word-of-mouth recruit-

ing. We recognized recently in United States v. Georgia

Power Co., 5th Cir. 1973, 474 F.2d 906, 925, that when all

current employees in a unit are white “word-of-mouth hiring

alone would tend to isolate blacks from the ‘web of informa-

tion’ which flows around opportunities at the company.” Al-

though this recruiting method is racially neutral in form, in

practice it operates as a “builtin headwind” to blacks. Id.;

Parham v. Southwestern Bell Telephone Co., 8th Cir. 1970, 433

F.2d 421; Clark v. American Marine Corp., E.D.La.1969, 304

F.Supp. 603, 606, 608. No business necessity for Bowman’s

exclusive reliance on this recruiting method has been shown or

argued.

Inasmuch as the record is clear as to the discriminatory

employment practices concerning drivers, we think that the

above evidence was sufficient to carry the plaintiff’s burden

of proof that discrimination in hiring office workers was

sufficiently shown to justify some relief.

Under the circumstances of this case we agree with appel-

lants that the District Court’s failure to order some hiring

relief in the form of public recruitment to attract black office

and clerical workers, as well as to attract OTR applicants, was

an abuse of discretion, and that advertising of office job

vacancies through some medium designed to reach blacks

would be appropriate.

We do not specify the precise form which such recruiting is

to take. “[A]dvertisements of openings in newspapers and

periodicals accessible to the black communities of Atlanta and

other Georgia cities, and public notice that the company is an

equal opportunity employer, are common recruiting tech-

niques which should be considered. . . . We hold only

that the present word-of-mouth practice must be supplement-

tad eR led AA ee

A53

4347 FRANKS v. BOWMAN TRANSP. CO.

ed or changed.” United States v. Georgia Power Co., supra,

at 926.

In summary, we conclude that this case warrants affirma-

tive hiring relief for potential black OTR drivers in the form

of public recruitment, consideration of additional affirmative

relief in the light of our opinion in Morrow, and affirmative

hiring relief for potential black office workers in the form of

public recruitment. We leave to the District Court the task

and prerogative of devising the particular form these reme-

dies should take and of framing an appropriate decree.

3. Mandatory Training for Discriminatees

[20] Appellants next ask that Bowman be ordered to es-

tablish special training programs to upgrade the skills of

discriminatees and to facilitate their movement out of inferior

jobs.

Bowman’s record of denying training opportunities to

blacks is bad. From 1968 to 1971 Bowman hired 75 to 150

white OTR drivers with no prior truck driving experience and

trained them by assigning them to “ride double” with experi-

enced drivers. At the same time, assertedly because of the

racial prejudice of all its white drivers, similar training oppor-

tunities were denied blacks. Prior to August of 1968 blacks

were absolutely excluded from city driver jobs, which may

lead to qualification for OTR jobs. In the Maintenance

Department, black Tire Shop employees have been denied

access to jobs through which they might progress to mechanic

position.

At a minimum, an effective remedy in this case must allow

black applicants and new employees access to training oppor-

tunities on an equal basis with whites in the future. This

requirement is implicit in the first paragraph of the district

court’s decree. It is little more than an echo of Title VII’s

general prohibition against discrimination in hiring and pro-

moting. Further, if black Bowman employees who are pres-

ently locked into racial patterns due to past discrimination are

AS4

FRANKS v. BOWMAN TRANSP. CO. 4348

to have a neaningfal opportunity to advance, we think they

must be afforded special temporary remedial training oppor-

tunities. A Tire Shop employee’s seniority will be of little use

to him in bidding on a mechanic’s slot so long as he lacks the

necessary skills. As the district court observed, “as a practical

matter, nobody in the tire shop can bump a mechanic.”

Heretofore Bowman has trained its employees on the job.

Inexperienced OTR drivers ride double with experienced driv-

ers. Certain jobs in the Maintenance Department are train-

ing steps to the mechanic jobs, and city driver jobs lead to

qualification for OTR jobs. On remand the district court

should identify those positions which are training grounds,

and impose conditions to ensure that a substantial number of

Bowman’s employees who have been discriminatorily relegat-

‘ed to inferior jobs in the past are afforded a ready access to

them. Pettway v. American Cast Iron Pipe Company, supra.

In analogous employment discrimination cases, some courts

have ordered the creation, at company expense, of counselling

and training programs to which discriminatees must be admit-

ted in certain numbers each year or according to a fixed ratio

until they hold a certain percentage of the skilled positions.

See Buckner v. Goodyear Tire & Rubber Co., N.D.Ala.1972,

$39 F.Supp. 1108, 1124-1125; United States v. Ironworkers

Local 86, W.D.Wash.1970, 315 F.Supp. 1202, 1247-1250, aff’d

' 9th Cir. 1971, 443 F.2d 544, cert. denied 404 U.S. 984, 92 S.Ct.

447, 30 L.Ed.2d 367. From our appellate prospective, we

cannot say that the creation of special new training programs

is necessary in this case to afford discriminatees an opportuni-

ty to overcome the effects of past discrimination. The inade-

quacy of existing training methods to accomplish this purpose

is not demonstrated in the record. If the district court should

find, however, that further remedial measures are necessary

to afford adequate training opportunities, it may fashion and

grant them.

%A55

4349 FRANKS v. BOWMAN TRANSP. CO.

4. Retention of Jurisdiction

[21] Bowman maintained blatantly discriminatory policies

at least until September of 1971, over five years after the

passage of Title VII. Since that time it has moved some

distance toward complying with Title VII’s mandates, but

only under pressure from government agencies and in the face

of threatened litigation. These circumstances, as well as the

decreasing rate at which it has hired black OTR drivers,

necessarily cast some doubt on its intention to discontinue and

remedy its unlawful employment practices voluntarily. The

district court should retain jurisdiction of this case for at least

two years and require periodic reports from Bowman which

will enable it to ascertain that the remedial measures it

mandates are being carried into effect.

E. Back Pay

[22] The district court denied back pay to the affected

classes on the basis of its conclusions that such relief (1) would

be inconsistent with the purpose of Title VII to promote

conciliation rather than litigation where possible, and (2)

would not be “warranted” in a Rule 23(b)\2) class action,

which contemplates primarily injunctive and declaratory re-

lief. In addition, the court stated back pay to non-named

class members was denied in the exercise of discretion. We

do not agree that either Rule 23(b\2) or Title VII prohibits

back pay awards to non-named class members. Further, since

it appears that the district court exercised its discretion under

an erroneous view of the applicable law, we vacate its decree

insofar as it denies back pay to the class and remand for

reconsideration of this issue. Cf. United States v. Georgia

Power Co., 5th Cir. 1973, 474 F.2d 906, 921; Johnson v.

Goodyear Tire & Rubber Co., 5th Cir. 1974, 491 F.2d 1364;

Pettway v. American Cast Iron Pipe Co., supra.

rete Gee ee OR

ccm

A56

FRANKS v. BOWMAN TRANSP. CO. 4350

The remedies authorized in Title VII specifically include

back pay. As indicated above, the purpose of Title VII is to

make the discriminatee whole and eliminate the effects of

past discrimination as far as possible. Where the disc’ imina-

tee has suffered economic injury in the form of lost wages,

back pay is normally appropriate relief. Harkless v. Sweeny

Independent School District, 5th Cir. 1970, 427 F.2d 319, 324.

The district court recognized this in awarding back pay to

Lee. One apparent source of its reluctance to extend this

remedy to class members was its view that to do so would

allow class members to circumvent EEOC concilatory efforts

and thus frustrate Title VII’s policy favoring resolution of

problems through conciliation rather than litigation where

possible. This view conflicts with what we said in Oatis v.

Crown Zellerbach Corp., 5th Cir. 1968, 398 F.2d 496, 499:

Racial discrimination is by definition class discrimination,

and to require a multiplicity of separate, identical charges

before the EEOC, filed against the same employer, as a

prerequisite to relief through resort to the court would tend

to frustrate our system of justice and order.

See also Miller v. International Paper Co., 5th Cir. 1969, 408

F.2d 283, 284-285. An EEOC complaint filed by the class

representative allows an adequate opportunity for resolution

of problems of the class through conciliation, Bowe v. Colgate-

Palmolive Co., 7th Cir. 1969, 416 F.2d 711, 720, and opens the

courthouse doors for the class. While Oatis and Miller did not

focus particularly on the back pay relief sought, we see no

basis for treating a back pay claim as unique and requiring

each class member to file his claim with the EEOC before

asserting it in the courtroom. The Seventh Circuit has

reached the same conclusion on this issue:

The clear purpose of Title VII is to bring an end to the

proscribed discriminatory practices, and to make whole, in a

pecuniary fashion, those who have suffered by it. To

A57

4351 FRANKS v. BOWMAN TRANSP. CO.

permit only injunctive relief in the class action would frus-

trate the implementation of a strong Congressional purpose

expressed in the Civil Rights Act of 1964. To require that

each employee file a charge with the EEOC and then join in

the suit would have a deleterious effect on the purpose of

the Act and impose an unnecessary hurdle to recovery for

the wrong inflicted.

Bowe v. Colgate-Palmolive Co., 7th Cir. 1969, 416 F.2d 711,

720. We believe this view is correct, and we hold that neither

the letter nor the spirit of Title VII precludes back pay

awards to non-named class members when only the class

representative has filed an appropriate EEOC complaint.

Nor does Fed.R.Civ.P. 23(b)(2) prohibit back pay awards to

non-named class members in a class action under that subdivi-

sion of the rule. Pettway v. American Cast Iron Pipe Co.,

supra; Robinson v. Lorillard Corp., 4th Cir. 1971, 444 F.2d 791,

802, cert. dismissed 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655.

It is true that Rule 23(b)(2) refers only to “injunctive relief or

corresponding declaratory relief” and “does not extend to

cases in which the appropriate final relief relates exclusively

or predominantly to money damages.” Advisory Committee’s

Notes, 1966, 39 F.R.D. 69, 102 (emphasis added). But this

Title VII action cannot be characterized as one seeking “ex-

clusively or predominantly money damages.” As we have

pointed out above, back pay awards under Title VII (and

under § 1981 to the extent that a § 1981 corresponds to a Title

VII action) are not damages, as such, but an integral part of

the equitable remedy. Even if back pay is considered as

equivalent to damages under Rule 23, in this case back pay is

not the exclusive or predominant remedy sought.

The district court should devise an appropriate procedure

for adjudicating the claims of non-named class members for

back pay awards. Johnson v. Goodyear Tire & Rubber Co.,

supra. Reliance on a master may be appropriate. Pettway v.

A58

FRANKS v. BOWMAN TRANSP. CO. 4352

American Cast Iron Pipe Co., supra; cf. Robinson v. Lorillard

Corp., M.D.N.C.1970, 319 F.Supp. 835, 843, aff’d 4 Cir., 444

F.2d 791, cert. dismissed 404 U.S. 1006, 92 S.Ct. 573, 30

L.Ed.2d 655. Insofar as the district court’s judgment denies

back pay to non-named class members it is reversed, and this

issue is remanded for reconsideration in light of the principles

enunciated above.

IV. Summary

In summary, we hold:

(1) Franks’ individual claim was not barred by limitations,

and, subject to the district court’s determination as to the

applicability of laches, the district court should on remand

enter judgment in his favor and grant him an appropriate

remedy;

(2) the district court’s determination of the facts relating to

Lee’s individual claim was not clearly erroneous;

(3) the class and subclasses represented are entitled to

further affirmative relief than was afforded by the district

court’s decree, including the use of full company seniority for

black Bowman employees who currently remain locked into

old racial patterns, public recruitment aimed at potential

black OTR drivers and clerical employees, temporary meas-

ures to ensure access to training opportunities for discrimina-

tees, and such Morrow type affirmative hiring relief as the

district court deems appropriate. The district court should

retain jurisdiction of this case and require compliance reports

from Bowman for at least two years. The district court’s

denial of back pay to non-named class members is reversed

and the issue is remanded for reconsideration in light of this

opinion and Johnson v. Goodyear Tire & Rubber Co., supra.

\ A59

4353 FRANKS v. BOWMAN TRANSP. CO.

Costs on appeal will be taxed one-tenth against Lee, three-

tenths against the ‘union, and six-tenths against Bowman.

Appellants’ attorneys are entitled to an award for fees earned

in the prosecution. of this appeal under 42 U.S.C.A.

§ 2000e—5(k). On remand the district court should determine

an appropriate fee award.

The district court’s judgment is affirmed in part, reversed

in part, vacated in part, and remanded.

A60

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1972

No. 72-3239

D. C. Docket No. CA 15,086

HAROLD FRANKS,

Plaintiff-Appellant,

JOHNNY LEE,

Intervenor-Appellant,

versus

BOWMAN TRANSPORTATION COMPANY, ET AL,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

Before THORNBERRY, AINSWORTH and RONEY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Georgia, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed in part, reversed in part, and vacated in part;

and that this cause be, and the same is hereby remanded

. *

ee eee

A61

to the said District Court in accordance with the opinion

of this Court.

It is further ordered that intervenor-appellant Lee be

condemned to pay one-tenth of the costs on appeal to be

taxed by the Clerk of this Court; and that defendant-

appellee the union be condemned to pay three-tenths of

said costs; and that defendant-appellee Bowman Transpor-

tation Company be condemned to pay six-tenths of said

costs.

Issued as Mandate: June 3, 1974

A62

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-3239

HAROLD FRANKS,

Plaintiff-Appeilant,

JOHNNY LEE,

Intervenor-Appellant,

versus

BOWMAN TRANSPORTATION COMPANY, ET AL,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION FOR REHEARING

(Filed July 15, 1974)

Before THORNBERRY, AINSWORTH and RONEY,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

by defendant-appellee Bowman Transportation, Inc. in the

above entitled and numbered cause be and the same is

hereby denied.

nics Ae ae Re Sh DES One Sa Fw ND

A63

UNITED STATES COURT OF APPEALS.

Fifth Circuit -

Edward W. Wadsworth 600 Camp Street —

Clerk New Orleans, La. 70130

Office of the Clerk

September 12, 1974

TO ALL COUNSEL.OF RECORD

Re: 72-3239—Franks, et al., vs. Bowman Transportation

Co., et al.,

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition( ) for rehearing, and the Court

of the Court and a majority of the Circuit Judges who are

in regular active service not having voted in favor of it,

(Rule 35, Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 12) the petition( ) for rehearing en

banc has also been denied. _

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Edward W. Wadsworth

Clerk

By /s/ Arvin G. Parens

Deputy Clerk

cc: Messrs. Howard Moore, Jr.,

Elizabeth R. Rindskopf

Messrs. Jack Greenberg

William L. Robinson

Morris J. Baller

Messrs. David L. Rose

William B. Fenton

John M. Gadzichowski

Mr. William M. Pate

Messrs. Robert B. Hocutt

James W. Dorsey

A64

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

. CIVIL ACTION

NUMBER 15086 '

HAROLD FRANKS,

: Plaintiff

, V8. ‘ F

BOWMAN TRANSPORTATION COMPANY, INTERNA-

TIONAL UNION OF DISTRICT 50, LOCAL NO. 13600,

ALLIED AND TECHNICAL WORKERS OF THE UNITED

STATES AND CANADA; and, INTERNATIONAL T'NION

OF DISTRICT 50, ALLIED AND TECHNICAL WORKERS

OF THE UNITED STATES AND CANADA,

Defendants

JOHNNIE, LEE,

_ Plaintiff-Intervenor

(Filed June 29, 1972) ~

This is a suit brought under Title VII of the Civil

Rights Act of 1964 (42 U.S.C. §2000e ff), alleging racial

discrimination in various employment practices of the de-

fendant company at its Atlanta Terminal and through its

collective bargaining agreement with the defendant union.

_ The petition was originally brought by the plaintiff

Franks, after processing of his complaint by the EEOC,

both on his individual claim and as a cless action. Sub-

sequently, the court permitted the intervention of Johnnie

Lee on his individual claim, also processed by the EEOC,

and on behaif of another class of employees not repre-

sented by Franks. As finally constituted, the case presents

‘ u j

a de

A65

the class questions of racial discrimination in the hiring,

transfer, promotion and discharge practices’ in vhe follow-

ing departments:

(a) Over-the-road drivers

(b) Dock and City drivers

(d) Office and clerical.

In the individual claims, Franks seeks redress for his

discharge from the Maintenance Department on or about

May 10, 1968. Lee seeks redress for an original failure to

hire, for failure to transfer, and for discharge as an over-

the-road driver on or about March 19, 1971. On the evi-

dence presented the court makes the following

FINDINGS OF FACT

The Class Action.

The defendant, Bowman Transportation, Inc., (the

Company) is a licensed common carrier operating along

the eastern seaboard and in certain areas of the midwest

under ICC and state regulations. It operates major termi-

nals at Atlanta, Richmond, Charlotte and Birmingham. Its

principal office and garage has been located at Gadsden,

Alabama, but is in process of being transferred to Atlanta.

Each major terminal operates as a hiring center not only

for terminal employees but for over-the-road drivers who,

of course, operate system wide. After a bitter struggle, the

company was unionized by the other defendants and col-

the petition attacked the use of a high school

Originally,

education requirernent and certain testing as emp employment requi-

sites in the office. However, this issue been mooted by the

ee ee oe

A66

lective bargaining agreements were sucessfully negotiated

in 1967 and 1970.

By their terms, the job classifications at the Atlanta

terminal are divided into three departments: (a) Over-

the-road drivers; (b) City Drivers and Dock Workers; and

Shop (including engine repair), the Trailer Shop (includ-

ing body repair), and the Tire Shop. Road drivers

throughout the system constitute a single department. Of-

fice, sales and clerical jobs are non-union, but in essence

constitute another department at each terminal. Thus, this

suit in its class aspects involves all road drivers system-

wide and all other employees at the Atlanta terminal

(Dock, Maintenance, and Office Departments).

Prior to 1968, the company was almost totally segre-

gated by race. Each department and sub-division did its

own hiring and adhered to strict racial lines. Moreover,

transfers from one to the other were discouraged and vir-

tually prohibited by management. Only an approved

“hardship case” warranted a transfer of any kind and this

was a rare occurrence. Prior to 1968; no Black person had

ever been employed in any job outside the Maintenance

Department. With the exception of two “clean up men”

in the Trailer Shop, all Black employees were assigned to

the Tire Shop which was predominantly Black with white

supervision. The percentage of Black employees at the

Atlanta terminal remained at 1% or less until that time.

By August, 1971, it has risen to only 4.5%.

The following represents an accurate distribution of

jobs by race as of the dates indicated:

A67

July, 1965 March, 1968 August, 1971

Dept./Job Blacks-Whites Blacks-Whites Blacks-Whites

Office &

Managerial 0 23 0 27 0 42

Sales Personnel 0 6 0 5 0 5

Office/Clerical 0 27 0 63 0 53

Ship Parts Clerk 0 8 0 9 0 a

Over-the-Road

Drivers

Atlanta Terminal 0 360 0 361 0 230

All Other 0 55 0 103 11 269

TOTAL 0 415 464 11 499

City Driver/

Dock Jobs

City Drivers 0 79 0 80 3 81

Checkers 0 23 0 127 4 103

; Dock Workers 0 84 0 94 6 60

TOTAL 0 186 0 301 13 244

Shop Workers

: Mechanics 0 70 0 92 0 63

Trailer Shop . ~ - - 0 36 -

Grease/Oil Men 0 6 0 8 0 4

Tire Shop 7 1 4 3 16 2

: Clean-up Men - - 1 1 4 0

i Janitors 0 1 0 2 1 1

TOTAL 7 78 10 106 21 106

TOTAL EMPLOYEES 7 743 10 1025 45 958

By wage, Blacks were consistently frozen into the

lower paying jobs. The following represents an accurate

distribution of wage classifications by race as of the dates

indicated.

March, 1968

Number Number

of of Percent

Weekly Wage: Blacks Whites Blacks

More than $150 0 464 0.0%

(Road Drivers)

$125-150 (Terminal Employees) 0 393 0.0%

Less that $125 (Terminal) 10 12 45.5%

TOTAL 10 869 1.1%

August, 1971

Number Number

of of Percent

Weekly Wage: Blacks Whites Blacks

More than $225 (Road Drivers) 11 499 2.2%

$125-210 (Terminal Employees) 13 343 2.7%

$175 (Terminal) 20 6 16.9%

TOTAL 44 848 4.9%

In its hiring policies, the company relied largely on

referrals from other employees or “walk-in.” The former

ordinarily applied in the department to which he was re-

ferred and this perpetuated the racial make-up of the re-

spective departments. With the exception of an insignifi-

cant number of Black applicants specifically applying for

office jobs (four), the walk-ins were ordinarily referred to

departments by race. Blacks were specifically directed to

the Tire Shop.

Partly because of existing ICC/ODT requirements the

company exercised greater selectivity in the employment

of over-the-road drivers. Qualifications of age, health, ex-

perience and mechanical ability were required. For awhile

written ODT tests were required. In addition, the com-

pany sought to impose stricter standards for references

and clean traffic records. Following personal interview

and approval, the new employees, if experienced, “ride

double” for a required period and if inexperienced obtain

on-the-job training in the same fashion. These policies re-

A69

quired the sharing of cabs and bunk-rooms and showers on

the road. As a result there was considerable driver re-

sentment against the hiring of Black road drivers. Prior

to 1970, management discussed the situation many times

and, fearful of driver reaction, adopted an unwritten policy

against hiring Blacks for such jobs. Only a handful ap-

plied and they were not really considered. Similarly, any

efforts of a city-driver to transfer to the road were effec-

tively discouraged. By different methods, the hiring of

Black road drivers was “put off as long as could” by the

company. With the exception of a few lease-truck opera-

tors, no Blacks ever served as road drivers until 1970.

In 1970, the company began receiving substantial num-

bers of Black applicants for the position of road driver. In

response to mounting pressure and partly due to the filing

of an EEOC complaint by the intervenor Lee in Birming-

ham, the company finally relaxed its policy. Black road

drivers were hired at the several terminals for the first

time on the following dates: Birmingham, September 11,

1970; Richmond, September 12, 1971; Atlanta, November

21, 1971; Charlotte, February 15, 1972. Prior to such dates,

the company had available Black applicants who, if other-

wise qualified, had experience with the same equipment as

city drivers or with other transportation companies. At

least two Blacks, Harbor and McLaughlin applied in late

1970 or early 1971 and were told there were no openings

when in fact there were. On the facts, each appears ex-

perienced and not obviously disqualified and were entitled

to consideration for employment at the time.

The company presently employs no racial discrimina-

tion in hiring road drivers and some 10% of such drivers

are now Black. The policy has worked out satisfactorily

and “a whole lot better” than management thought.

A70

Meanwhile within the terminal, the 1967 collective-

bargaining agreement effectively removed the “no trans-

fer” policy formerly in existence and concurrently opened

the way for Black hirings in all departments. As a result

Blacks were first hired into former all-white jobs in the

Dock department as checker on August 15, 1968; as dock

worker on October 21, 1968; and as city driver on June 20,

1969. While the contract provided for interdepartmental

transfer for the first time, it recognized a departmental

seniority system. This effectively penalized any Senior

Blacks wishing to transfer to a previously all-white depart-

ment in favor of junior whites already employed therein.

While the open transfer provision has worked well in

_ the Dock department since that time, it has not proven out

in the maintenance department. The contract provides

departmental bidding only and for an annual bidding in

August and, in fact, all open jobs are posted. The process-

ing of actual bids is in accordance with the contract and

without racial discrimination. However, the efforts of

Blacks to transfer out of the Tire Shop into the Tractor or

Trailer shops have been significantly discouraged by man-

agement. The latter two shops, of course, require con-

siderable mechanical skill and experience. As a result,

most hirees are off the street or from outside garages.

However, it is possible to begin as a “grease man” and no

prior experience is necessary. From that job it is possible

to progress to a C mechanic’s job (essentially a helper) to

B mechanic and finally to A mechanic. The “grease man”

job is somewhat distasteful and for that reason many em-

ployees, including the vast number of Blacks in the Tire

Shop, simply do not want it, even at the loss of an opportu-

nity to progress out of a virtual “dead-end” job in the Tire

Shop to the learning of a skilled trade. Some, however, do

wish this opportunity. Upon inquiry they have been ad-

A7l1

vised that it is necessary to resign for a period of six weeks

and reapply, or that a straight resignation and reapplica-

tion is necessary, or told that he could not transfer. As a

result, some Blacks failed to bid for openings in the Tractor

and Trailer Shops in which they were genuinely interested.

This practice on the part of the company has effectively

maintained an all-white Tractor and Trailer Shop.

is no evidence of a failure to hire qualified Black

who originally applied for employment in the Tractor or

Trailer shops.

The office employment situation stays rather stable

and although there is a substantial number of applicants

each year, the hiring rate is very low. In the past five

years, there have only been a total of only three or four

Black applicants out of an average of 25 each year. Each

of these applicants has been treated no differently from

any other applicant and race has not been a factor in the

employment policies in the office. At time of trial, one

Black applicant has been deemed qualified and is waiting

for an opening. There simply has been little interest by

Blacks in clerical positions at this company and no evi-

dence is produced of racial discrimination in this depart-

ment.

The company now has an official policy against dis-

crimination in all of its hiring practices.

CONCLUSIONS OF LAW

The court has jurisdiction of this action pursuant to

Section 706(f) of the 1964 Civil Rights Act, 42 U.S.C.

§2000e-5(f). The defendant, Bowman Transportation Com-

pany, is an employer engaged in industry affecting com-

merce within the meaning of Section 701(b) of the Act,

42 U.S.C. §2000e(b). The defendant Unions are labor or-

AT72

ganizations engaged in industry affecting commerce within

the meaning of Section 701(d)(e) of the Act, 42 USC.

§2000e (d) (e).

The evidence shows a pattern of racial discrimination

in the hiring, assignment, transfer, and discharge policies

of the and such practices as perpetrated by the

Agreement with the unions constitute unlaw-

ful employment practices under the Act. 42 USC.

§2000e-2(a). E.g. Bing v. Roadway Express, Inc., 444 F.2d

687 (5th 1971); United States v. Hayes International Corp.,

514 F.2d 1038 (5th Cir. 1969).

The action is maintainable as a class action under Rule

23(b) (2). E.g. Johnson v. Georgia Highway Express, Inc.,

417 F.2d 1122 (5th Cir. 1969). The plaintiff Franks rep-

resents all Black applicants/employees hired at the Atlanta

Terminal and who sought employment/transfer to the

Dock Department prior to August 15, 1968, or transfer

within the Maintenance Department prior to May 1, 1972.

The intervenor Lee represents all Black applicants who

sought to be hired or to transfer to over-the-road driver

positions prior to January 1, 1972.

Agpcopriete injunctive reliet Sor subs pest diecrimine-

tion, as provided in the attached decree is ordered. This

will include credit for departmental seniority prior to the

dates each such practice terminated plus preferential re-

application rights for identified applicants for certain

positions.

The plaintiffs also pray for lump sum awards for back

pay to any member of an affected class plus retroactive

seniority to any rejected applicant. This court was faced

with such claims in United States v. Georgia Power Com-

pany, ........ F. Supp. ........ (N.D. Ga. 1971), 3 EPD 98318 and

discussed the problem at length. Suffice it to say here, the

A73

court concludes that such relief is not warranted in class

actions. The claims for back-pay presuppose arr opening,

qualification and performance for every member of the

class. The claims for retroactive seniority also presuppose

a vacancy, qualification, and perfomance by every member.

: There is no evidence on which to base these multiple con-

: clusions. More importantly, they bypass the statutory ad-

: ministrative prerequisites to personal suit established by

the Congress and any appropriate statute of limitations. In

; essence, they seek to give individual compensation to the

| class in gross under circumstances where an individual

could not qualify alone. The emphasis on private settle-

ment in the Act is also thwarted by this device. See Oatis

v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968); Jenkins

v. United Gas Corp., 400 F.2d 28 (5th Cir. 1969). For these

reasons as well as in the exercise of discretion, these

remedies are rejected. Of course, where appropriate they

will be afforded the individual claimants here under 42

U.S.C. §2000e-5 (g).

Plaintiffs’ attorneys are entitled to an award of fees ~

for successful prosecution of this action. The court finds

that plaintiffs’ attorneys have reasonably spent approxi-

mately 200 hours in preparation and trial of this case. Con-

sidering the nature of the case, the results obtained, and

* the experience of the attorneys involved, the court finds

in its discretion, such services to be reasonably worth the

sum of $7,500.00. Such fees are assessed $6,000.00 on de-

fendant Bowman and $1,500.00 on the remaining defen-

dants. All statutory court costs are assessed on defendant

Bowman upon presentation and approval of a proper cost

bill.

ee ee

AT74

THE INDIVIDUAL CLAIMS

The Franks Claim.

Plaintiff Harold Franks was hired as a Tire Man in

Bowman’s Atlanta Terminal Tire Shop on September 13,

1960. With the exception of one year beginning in 1961,

during which plaintiff worked as a Grease Man, plaintiff

was employed in the Tire Shop as a Tire Man. During

1965, plaintiff resigned due to injury and was rehired on

May 16, 1966. In accord with Bowman’s policy of assign-

ing Blacks to the Tire Shop, plaintiff was again hired as

a tire man earning $2.15 per hour.

Shortly after his return in 1966 he made several in-

quires about transfers to the Tractor and Trailer Shop and

the Dock Department. In accordance with the then com-

pany policy, he was advised that transfers were not per-

mitted. After the 1967 contract became effective he again

inquired about transfers and was again told he could not.

Plaintiff Harold Franks filed his first charge of racial

discrimination against Bowman with the EEOC on March

25, 1968, alleging that Bowman’s no transfer rule was part

of the company policy of restricting employment for Blacks

to the Tire Shop.

Thereafter, EEOC officials investigated Franks’ charge,

visiting Bowman’s Atlanta Terminal and talking with com-

pany officials on April 23, 1968, and May 10, 1968. The

second visit occurred during the morning hours; Franks

was discharged during the afternoon of the same day by

his supervisor, Charlie Andrews, for “unauthorized bob-

tailing”, or the use of company vehicles for personal use.

Tire Shop employees are required, as part of the job,

to drive tractors to and from the tractor parking areas for

service. It is a commonly accepted practice for employees

Oe ee ae ere Seer me ee Se

Dieta ae abe eee ed bide whee ne

AT5

to do brief personal errands while driving the tractors on

these occasions. Wth the exception of plaintiff Harold

Franks, no Bowman employee has ever been discharged

for “bobtailing” (driving tractor without trailer) on com-

pany property. All other discharges for unauthorized bob-

tailing occurred off of company property. This discharge

was for reasons of race.

At the time, Franks was being paid at the rate of $2.60

per hour. However, it is not unreasonable to assume that

by the end of 1967 he could legally have transferred to the

position of Dock Worker, the entry level job in that de-

partment, the company having hired in excess of 50 during

that year. A normal work week by the Union contracts is

45 hours and the pay in such job was $3.03 per hour.? Thus

Franks would ordinarily be entitled to recover the differ-

ence in a wage calculated as a dock-worker and his interim

earnings® -

However, the defendant has moved to dismiss the in-

dividual claim for failure to file suit within the 30-day pe-

riod following issuance of the suit letter. This motion

arises out of a confusing set of circumstances. Franks filed

two separate EEOC charges: the first on March 25, 1968,

alleging, among other things, failure to promote, ie. trans-

2. 1967 — $3.03 1970 — $3.94

1968 — $3.23 1971 — $4.34

1969 — $3.43 1972 — $4.74

3. Which are

1968 Harper Motor Lines, Inc. $ 3,641.16

1969 Harper Motor Inc. 6,344.79

Georgia-Alabama- Transportation Co. 1,348.97

1970 Harper Motor Inc. 3,592.75

Georgia-Alabama- Transportation Co. 5,576.45

1971 Georgia-Alabama-Florida Transportation Co. 9,587.96

$30,092.08

A76

fer; the second on May 13, 1968, alleging a discriminatory

discharge. By the end of 1969 these charges had been fully

acted upon by the EEOC. Meanwhile, on March 21, 1969,

Franks’ then attorney requested the issuance of a suit letter

or both charges. On the same day the suit letter* was

mailed out to Franks. At the time, he resided at 5339

Victory Drive, Morrow, Georgia, but used 5319 Victory

Drive, Morrow, Georgia, where his grandmother, sister and

nephew, Calvin High, age 9, resided as his “mailing ad-

dress” and all his mail was customarily delivered at the

latter address. The suit letter was duly delivered there on

March 22, 1969, and receipted by the nephew. Franks per-

sonally never saw the letter, but learned that High had

signed for some letter at the time.

No suit was filed within 30 days after the March 21,

1969, suit letter and Franks’ then attorney did nothing.

Approximately 1-1/2-2 years later, Franks consulted his

present attorneys. In the spring on or about March 2,

1971, apparently at their direction, he filed an “amended

charge” reiterating the same charges (D 84-85), but re-

fering to the two previous charges and citing May 10,

1968, as “the most recent date” on which discrimination

occurred. A new suit letter issued on April 14, 1971, and

this action was timely filed thereafter.

On these facts, the court concludes that the class as-

pects of the complaint, being continuing in nature, are

viable under the 1971 suit letter, but the individual claim,

being fixed in time, is barred.

Cenclusions.

Title VII of the Civil Rights Act of 1964 has a built-in

90 day limitation in individual claims in that the charge

4. Strangely, this letter and receipt were expunged from

the EEOC file furnished counsel.

bin pate WLI

ae Seg CFS, et ae me

ATT

must be filed with the Equal Employment Opportunity

Commission within 90 days after the alleged unlawful em-

ployment practice. 42 U.S.C. §2000e-5(d). Likewise, suit

must be filed within 30 days after receipt of the “suit-

letter.” 42 U.S.C. §2000e-5(e). For the purposes of indi-

vidual relief, in a long line of cases each has been held to

be jurisdictional. See Hutchings v. United States Indus-

tries, Inc., 428 F.2d 303 (5th Cir. 1970); Culpepper v.

Reynolds Metals Company, 421 F.2d 888 (5th Cir. 1970);

Goodman vy. City Products Corp., 425 F.2d 702 (6th Cir.

1970); King v. Georgia Power Company, 295 F. Supp. 943

(N.D. Ga. 1968); Colbert v. H. K. Corporation, 295 F. Supp.

1091 (N.D. Ga. 1968); Boudreaux v. Baton Rouge Marine

Contracting Co., 304 F. Supp. 240 (E.D. La. 1969). Both of

these limitations apply to an isolated completed act of dis-

crimination such as failure to transfer or discharge, be-

cause they are not continuing in nature. Upon their hap-

pening, each complainant is immediately entitled to file

charges with the EEOC and the limitations begin to run.

See various rulings of The General Counsel of the EEOC:

Dec. 2, 1965, LRX 1892a; Nov. 26, 1965, LRX 1892a; Jan.

11, 1966, LRX 1892a. In this instance, the two individual

acts occurred no later than May 15, 1968. They were duly

reported. At the request of plaintiff, a suit letter on both

individual complaints issued on March 21, 1969. However,

no action was filed until May 5, 1971, over two years sub-

sequent to the issuance of the all-important suit letter.

It is true that Franks did not see his notice personally.

However, it was deliveied as all of his other mail was de-

livered and the defenda~* ough: not to be penalized on that

account. Moreover, it has long been considered that the

acts and omissions of an attorney are the acts and omissions

of the client. In truth, Franks’ failure was that of his se-

lected attorney, but the court knows no solution for such

A78

failure absent fraud. From the defendant’s point of view,

the delay has deprived it of an opportunity to settle the

claims at an early stage or, at the least, to mitigate the

dollar damages. It would be unfair to allow the stale

claims to be resurrected by securing a second “suit letter”

as was done here. Accordingly, the claims for individual

relief are barred by failure to file within 30 days of the

issuance of the suit letter of March 21, 1969. Miller v.

International Paper Co., 408 F.2d 283 (5th Cir. 1969).

The same result would be reached on the basis of

$1983 jurisdiction because of the expiration of over two

years between the “wrong” and the filing of the action in

Georgia. E.g. Shank v. Spruill, 406 F.2d 756(1) (5th Cir.

1969). Ga. Code §3-704.

However, the class claims attacking the general em-

ployment practices of the defendant are viable under the

second suit letter because they are continuing in nature.

E.g. Jenkins v. United Gas Co., 400 F.2d 28 (5th Cir. 1968);

Banks v. Lockheed-Georgia, 46 F.R.D. 442 (N.D. Ga. June,

1968). Thus, they could be reported within 90-days of any

day they exist and a suit letter thereon followed by a

timely action would be allowed.

For the reasons stated, no back-pay or individual re-

lief is awarded to plaintiff Franks and defendant is entitled

to judgment thereon.

The Lee Claim.

Johnnie Lee, the intervenor is 38 years old. Prior to

1970, he had extensive experience driving trucks and

tractor-trailers, principally in the Pensacola area. Included

in his job history was some “over the road” experience

with private carriers and some “city driver” experience

with a common carrier. On or about January 5, 1970, he

‘4

;

A79

applied at Bowman’s Pensacola office for any kind of

driving job. At the time, he was told there were no

openings, but given a “city driver” application. He sent

the application to the Atlanta Terminal on January 13,

1970, and it was returned with an “over-the-road” applica-

tion. This application was also completed, but upon return

on January 26, 1970, he was notified of his rejection. In

February, 1970, he heard that a white road driver had been

hired subsequent to his application and confirmed this per-

sonally. Thereupon, he filed a complaint with the EEOC.

In early August, 1970, the company first notified him to go

to the Birmingham Terminal. Following two additional

letters he reported and was first hired as a road driver as-

signed to that Terminal on September 18, 1970. He worked

continuously in that capa

This text is long and has been trimmed here. Open the source document for the complete record.

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